-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Fllk6RrdmPhT+qZw58P9I47uiYk7ck/WOYY8baPAhaCOFvbudDzgc6IDNy6Ld25M VFIUHL3jss8b1ojBfn9ltQ== /in/edgar/work/20000920/0000950129-00-004650/0000950129-00-004650.txt : 20000924 0000950129-00-004650.hdr.sgml : 20000924 ACCESSION NUMBER: 0000950129-00-004650 CONFORMED SUBMISSION TYPE: S-4 PUBLIC DOCUMENT COUNT: 11 FILED AS OF DATE: 20000920 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NORTHERN BORDER PARTNERS LP CENTRAL INDEX KEY: 0000909281 STANDARD INDUSTRIAL CLASSIFICATION: [4922 ] IRS NUMBER: 931120873 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: SEC FILE NUMBER: 333-46212 FILM NUMBER: 725744 BUSINESS ADDRESS: STREET 1: 1400 SMITH ST STREET 2: C/O ENRON BLDG CITY: HOUSTON STATE: TX ZIP: 77002 BUSINESS PHONE: 7138536161 MAIL ADDRESS: STREET 1: 1400 SMITH ST STREET 2: ENRON BUILDING RM 4524 CITY: HOUSTON STATE: TX ZIP: 77002 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NORTHERN BORDER INTERMEDIATE LTD CENTRAL INDEX KEY: 0001121286 STANDARD INDUSTRIAL CLASSIFICATION: [ ] IRS NUMBER: 931120695 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: SEC FILE NUMBER: 333-46212-01 FILM NUMBER: 725745 BUSINESS ADDRESS: STREET 1: 1111 S 103RD ST CITY: OMAHA STATE: NE ZIP: 68124-1000 BUSINESS PHONE: 7138536161 MAIL ADDRESS: STREET 1: 1111 S 103RD ST CITY: OMAHA STATE: NE ZIP: 68124-1000 S-4 1 h80326s-4.txt NORTHERN BORDER PARTNERS, L.P. 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 20, 2000 REGISTRATION NO. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------------- FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- ISSUER OF NOTES REGISTERED HEREBY NORTHERN BORDER PARTNERS, L.P. (Exact name of registrant as specified in its charter) DELAWARE 4922 93-1120873 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification Number)
GUARANTOR OF NOTES REGISTERED HEREBY NORTHERN BORDER INTERMEDIATE LIMITED PARTNERSHIP (Exact name of registrant as specified in its charter) DELAWARE 4922 93-1120695 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification Number)
JANET K. PLACE 1400 SMITH STREET 1111 SOUTH 103RD STREET HOUSTON, TEXAS 77002 OMAHA, NEBRASKA 68124-1000 (713) 853-6161 (402) 398-7886 (Address, including zip code, and telephone (Name, address, including zip code, and number, including area code, of telephone number, including area registrant's principal executive offices) code, of agent for service)
Copies to: ALAN P. BADEN VINSON & ELKINS L.L.P. 1325 AVENUE OF THE AMERICAS, 17TH FLOOR NEW YORK, NEW YORK 10019 (917) 206-8001 (917) 206-8100 (FAX) APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE PUBLIC: As soon as practicable following the effectiveness of this Registration Statement. If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. [ ] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier registration statement for the same offering. [ ] CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------------------- PROPOSED PROPOSED MAXIMUM MAXIMUM AMOUNT OF TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION SECURITIES TO BE REGISTERED REGISTERED PER NEW NOTE OFFERING PRICE FEE(1) - ----------------------------------------------------------------------------------------------------------------------- 8 7/8% Senior Notes due 2010, Series A......... $250,000,000 100% $250,000,000 $66,000 - ----------------------------------------------------------------------------------------------------------------------- - -----------------------------------------------------------------------------------------------------------------------
(1) Calculated in accordance with Rule 457 under the Securities Act of 1933. THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT EXCHANGE THE NOTES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THE NEW NOTES AND IT IS NOT SOLICITING AN OFFER TO BUY THE NEW NOTES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. SUBJECT TO COMPLETION, DATED SEPTEMBER 20, 2000 $250,000,000 NORTHERN BORDER PARTNERS, L.P. OFFER TO EXCHANGE 8 7/8% SENIOR NOTES DUE 2010, SERIES A THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 FOR ANY AND ALL OUTSTANDING 8 7/8% SENIOR NOTES DUE 2010 THE NEW NOTES: - - Restrictions: The new notes will be freely tradeable and otherwise substantially identical to the outstanding notes. - - Maturity: June 15, 2010. - - Interest Payments: Semi-annually in cash in arrears on June 15 and December 15, commencing December 15, 2000. - - Redemption: We can redeem some or all of the new notes at our option on at least 30 days' notice at the redemption prices described under the heading "Description of the New Notes." - - Guarantee: The new notes will be unconditionally guaranteed by our subsidiary, Northern Border Intermediate Limited Partnership, so long as that subsidiary has guaranteed any long-term debt. The guarantee will rank equally with its guarantees of our bank credit facilities and our existing and future unsubordinated debt. - - Ranking of Notes: The new notes will rank equally with all of our other existing and future senior and unsubordinated indebtedness, junior to any of our secured indebtedness to the extent of the security for that indebtedness and senior to any of our subordinated indebtedness. All of our operating assets are in our subsidiaries and, therefore, the new notes will be effectively subordinated to all indebtedness of those subsidiaries, other than Northern Border Intermediate Limited Partnership. THE EXCHANGE OFFER: - - Expiration: 5:00 p.m., New York City time, on , 2000, unless we extend the expiration date. - - Conditions: The exchange offer is not conditioned upon any aggregate principal amount of outstanding notes being tendered. - - Tendered Notes: All outstanding notes that are validly tendered and not validly withdrawn will be exchanged for an equal principal amount of new notes that are registered under the Securities Act of 1933. If you fail to tender your outstanding notes, you will continue to hold unregistered securities, and your ability to transfer them could be adversely affected. - - Withdrawal: Tenders of outstanding notes may be withdrawn at any time prior to the expiration of the exchange offer, unless we have already accepted your outstanding notes for exchange. - - Tax Consequences: The exchange of outstanding notes for new notes will not be a taxable event for U.S. federal income tax purposes. TRADING FORMAT - - The new notes will not be listed on any securities exchange. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this prospectus is , 2000 3 The information contained in this prospectus was obtained from us and other sources believed by us to be reliable. This prospectus also incorporates important business and financial information about us that is not included in or delivered with this prospectus. You should rely only on the information contained in this prospectus or any supplement and any information incorporated by reference in this prospectus or any supplement. We have not authorized anyone to provide you with any information that is different. If you receive any unauthorized information, you must not rely on it. You should disregard anything we said in an earlier document that is inconsistent with what is in or incorporated by reference in this prospectus. You should not assume that the information in this prospectus or any supplement is current as of any date other than the date on the front page of this prospectus. This prospectus is not an offer to sell nor is it seeking an offer to buy these securities in any state or jurisdiction where the offer or sale is not permitted. We include cross references in the prospectus to captions in these materials where you can find further related discussions. The following table of contents tells you where to find these captions. TABLE OF CONTENTS
PAGE NO. ---- Forward-Looking Statements.................................. 3 Prospectus Summary.......................................... 4 Use Of Proceeds............................................. 12 Capitalization.............................................. 12 Selected Historical Financial Data.......................... 13 Ratio Of Earnings To Fixed Charges.......................... 14 The Exchange Offer.......................................... 15 Description Of The New Notes................................ 24 United States Federal Tax Considerations.................... 38 Plan Of Distribution........................................ 40 Legal Matters............................................... 41 Independent Public Accountants.............................. 41 Where You Can Find More Information......................... 41 Incorporation Of Documents By Reference..................... 42
2 4 FORWARD-LOOKING STATEMENTS This prospectus contains statements that constitute "forward-looking statements" within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. In general, any statement other than a statement of historical fact is a forward-looking statement. These statements appear in a number of places in this prospectus and include statements regarding our plans, beliefs and expectations with respect to, among other things: - future acquisitions; - expected future costs; - future capital expenditures; - trends affecting our future financial condition or results of operation; and - our business strategy regarding future operations. Any such forward-looking statements are not assurances of future performance and involve risks and uncertainties. Actual results may differ materially from anticipated results for a number of reasons, including: - industry conditions; - future demand for natural gas; - availability of supplies of Canadian natural gas; - political and regulatory developments that impact Federal Energy Regulatory Commission proceedings involving Northern Border Pipeline; - the success of Northern Border Pipeline in sustaining its positions in Federal Energy Regulatory Commission proceedings, or the success of intervenors in opposing Northern Border Pipeline's positions; - Northern Border Pipeline's ability to replace its rate base as it is depreciated and amortized; - competitive developments by Canadian and other U.S. natural gas transmission companies; - political and regulatory developments in the U.S. and in Canada; and - conditions of the capital markets. In light of these and other risks, uncertainties and assumptions, the actual events or results may be very different from those expressed or implied in the forward-looking statements in this prospectus or may not occur. We have no obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future events or otherwise. --------------------- NOTICE TO NEW HAMPSHIRE RESIDENTS NEITHER THE FACT THAT A REGISTRATION STATEMENT OR AN APPLICATION FOR A LICENSE HAS BEEN FILED UNDER CHAPTER 421-B OF THE NEW HAMPSHIRE REVISED STATUTES ANNOTATED, 1955, AS AMENDED (RSA), WITH THE STATE OF NEW HAMPSHIRE NOR THE FACT THAT A SECURITY IS EFFECTIVELY REGISTERED OR A PERSON IS LICENSED IN THE STATE OF NEW HAMPSHIRE CONSTITUTES A FINDING BY THE SECRETARY OF STATE THAT ANY DOCUMENT FILED UNDER RSA 421-B IS TRUE, COMPLETE AND NOT MISLEADING. NEITHER ANY SUCH FACT NOR THE FACT THAT AN EXEMPTION OR EXCEPTION IS AVAILABLE FOR A SECURITY OR A TRANSACTION MEANS THAT THE SECRETARY OF STATE HAS PASSED IN ANY WAY UPON THE MERITS OR QUALIFICATION OF, OR RECOMMENDED OR GIVEN APPROVAL TO, ANY PERSON, SECURITY OR TRANSACTION. IT IS UNLAWFUL TO MAKE, OR CAUSE TO BE MADE, TO ANY PROSPECTIVE PURCHASER, CUSTOMER OR CLIENT ANY REPRESENTATION INCONSISTENT WITH THE PROVISIONS OF THIS PARAGRAPH. 3 5 PROSPECTUS SUMMARY This summary highlights selected information from this prospectus to help you understand our business and the notes. It likely does not contain all the information that is important to you or that you should consider in making an investment decision. To understand all of the terms of the exchange offer and to attain a more complete understanding of our business and financial situation, you should read carefully this entire prospectus and should consider consulting with your own legal and tax advisors. References in this prospectus to "we," "us," "our," or "our partnership" refer to Northern Border Partners, L.P. NORTHERN BORDER PARTNERS, L.P. OUR BUSINESS Through our subsidiary limited partnership, Northern Border Intermediate Limited Partnership, we own a 70% general partner interest in Northern Border Pipeline Company, a Texas general partnership. Northern Border Pipeline owns a 1,214-mile United States interstate pipeline system that transports natural gas from the Montana-Saskatchewan border to natural gas markets in the midwestern United States. This pipeline system connects with multiple pipelines, which allow shippers to access the various natural gas markets served by those pipelines. Our 70% interest in Northern Border Pipeline represents the largest portion of our assets, earnings and cash flows. Northern Border Pipeline constructed the pipeline system in 1982, and it completed expansions and/or extensions in 1991, 1992 and 1998. It completed the most recent expansion and extension, called The Chicago Project, in late 1998. This increased the pipeline system's ability to receive natural gas by 42% to its current capacity of 2,373 million cubic feet per day. The amount of natural gas that can be transported in the pipeline is referred to as "capacity" and is measured in cubic feet per day. In the year ended December 31, 1999, Northern Border Pipeline transported approximately 23% of the total amount of natural gas imported from Canada to the United States. Over the same period, approximately 91% of the natural gas transported by Northern Border Pipeline was produced in the western Canadian sedimentary basin located in the provinces of Alberta, British Columbia and Saskatchewan. Northern Border Pipeline transports gas for shippers under a tariff regulated by the Federal Energy Regulatory Commission. The tariff allows Northern Border Pipeline an opportunity to recover from its shippers the cost of service, including operations and maintenance costs, taxes other than income taxes, interest, depreciation and amortization, an allowance for income taxes and a regulated return on equity. Shippers contract to pay for a proportionate share of those costs by way of a mileage-based charge for the amount of capacity contracted. The shippers are obligated to pay the charge regardless of the amount of natural gas they transport. Northern Border Pipeline does not own the gas that it transports, and therefore it does not assume any natural gas commodity price risk. The pipeline system serves more than 40 shippers with diverse operating and financial profiles. Based upon shippers' cost of service obligations, as of December 31, 1999, at least 97% of the pipeline capacity was contractually committed through mid-September 2003, and the weighted average contract life was slightly under seven years. In August 2000, we signed a Letter of Understanding to purchase interests in gas gathering facilities in the Powder River and Wind River Basins in Wyoming for approximately $200 million from Enron North America Corp., a subsidiary of Enron Corp. The transaction included the purchase of Enron Midstream Services, L.L.C., which holds, among other assets, an ownership interest in Bighorn Gas Gathering, L.L.C., and Enron North America subsidiaries that hold ownership interests in Fort Union Gas Gathering, L.L.C. and Lost Creek Gathering, L.L.C. The interest in Bighorn will add to our previous ownership position. During 1999, we purchased a 39% common membership interest in Bighorn for $31.9 million and in June 2000 we purchased 80% of all issued and outstanding Preferred A Units of Bighorn for $20.8 million. CMS Field Services, Inc. holds the 4 6 remaining ownership interest in Bighorn. Located in northeastern Wyoming, Bighorn's system is capable of gathering more than 250 million cubic feet per day of coal bed methane gas for delivery to the Fort Union gathering system. Bighorn's gathering system consists of more than 90 miles of gathering pipeline with an expansion of an additional 56 miles to be completed later this year. The gathering system is managed through a management committee consisting of representatives of the owners. CMS Field Services is the project manager. Bighorn has long-term agreements with CMS Oil and Gas Company, Pennaco Energy Inc. and J. M. Huber Corporation to gather coal bed methane gas. The Fort Union gathering system consists of 106 miles of gathering pipeline in the Powder River Basin and offers interconnects to the interstate gas pipeline grid serving gas markets in the Rocky Mountains, the Midwest and California. The remaining ownership interest in Fort Union is held in varying percentages by subsidiaries of CMS Energy Services, Western Gas Resources, Inc., Colorado Interstate Gas Company, and Barret Resources. Lost Creek owns a 123 mile gas gathering system in the Wind River Basin that went into service in August 2000. A subsidiary of Burlington Resources, Inc. holds the remaining ownership interest in Lost Creek. We also own Black Mesa Holdings, Inc. Black Mesa, through a wholly-owned subsidiary, owns a 273-mile, 18-inch diameter coal slurry pipeline that originates at a coal mine in Kayenta, Arizona. The coal slurry pipeline transports crushed coal suspended in water. It traverses westward through northern Arizona to the 1,500 megawatt Mohave Power Station located in Laughlin, Nevada. The capacity of the pipeline is fully contracted to the coal supplier for the Mohave Power Station through the year 2005. Our principal executive offices are located at 1400 Smith, Houston, Texas 77002. Our telephone number is (877) 208-7318. The offices of Northern Border Pipeline Company are located at 1111 South 103rd Street, Omaha, Nebraska 68124. Northern Border Pipeline's telephone number is (402) 378-7700. OUR STRATEGY Our strategy is to continue to own and manage Northern Border Pipeline as a highly utilized, low cost pipeline system and to increase the pipeline system's capacity through expansions or extensions, joint ventures, other alliances or selective acquisitions. In the near term, we plan to focus our efforts on obtaining extensions of the existing contracts with shippers and on expansion opportunities on the east end of the system. These opportunities may include looping, additional compression or extensions of the pipeline system. We will also explore opportunities to transport natural gas or maximize our shippers' ability to access markets outside the Chicago area. We plan on focusing our efforts on serving new electric generation facilities on the east end of the pipeline system. We are also focusing on acquisition opportunities involving energy businesses in North America. We hope to leverage our experience in energy transportation to enhance cash flow and earnings by acquiring other, primarily unregulated, transportation assets. We plan to pursue opportunities that involve fee-for-service income and minimal commodity price risk. As the Northern Border pipeline system rate base is depreciated and amortized, our cash flow from the existing pipeline system will likely decrease. Thus, if we are to increase our earnings and cash flow, we must succeed in implementing our strategy. OUR STRUCTURE AND MANAGEMENT Our general partners and the general partners of the intermediate limited partnership are Northern Plains Natural Gas Company and Pan Border Gas Company, both subsidiaries of Enron, and Northwest Border Pipeline Company, a subsidiary of The Williams Companies, Inc. Our general partners hold an aggregate 2% general partner interest in us. Our general partners or their affiliates also own common units representing an aggregate 14.5% limited partner interest in us. The combined general and limited partner interests of Enron and Williams are 12.4% and 4.1%, respectively. We are managed by or under the direction of our Partnership Policy Committee consisting of three members, each of whom has been appointed by one of our general partners. 5 7 Management of Northern Border Pipeline, our largest holding, is overseen by the Northern Border management committee, which is comprised of three of our representatives (one designated by each of our general partners) and one representative from TC PipeLines, LP., the owner of the remaining 30% general partner interest in Northern Border Pipeline. The general partner of TC PipeLines, LP is TC PipeLines GP, Inc., which is a subsidiary of TransCanada PipeLines Limited. Voting power on the management committee is allocated among our three representatives in proportion to their general partner interests in us. As a result, the 70% voting power of our three representatives on the management committee is allocated as follows: 35% to the representative designated by Northern Plains, 22.75% to the representative designated by Pan Border and 12.25% to the representative designated by Northwest Border. Therefore, Enron controls 57.75% of the voting power of the management committee. Northern Plains operates the Northern Border pipeline system pursuant to an operating agreement. Northern Plains employs approximately 190 individuals located at its operating headquarters in Omaha, Nebraska, and at various locations along the pipeline route. Northern Plains' employees are not represented by any labor union and are not covered by any collective bargaining agreements. 6 8 SUMMARY OF THE EXCHANGE OFFER You are entitled to exchange in the exchange offer your outstanding notes for new notes with substantially identical terms. You should read the discussion under the headings "-- Summary of the Terms of the New Notes" beginning on page 10 and "Description of the New Notes" beginning on page 24 for further information regarding the new notes. We summarize the terms of the exchange offer below. You should read the discussion under the heading "The Exchange Offer" beginning on page 15 for further information regarding the exchange offer and resale of the new notes. Securities to be Exchanged.................. On June 2, 2000 and September 14, 2000, we issued $150.0 million and $100.0 million, respectively, aggregate principal amount of outstanding notes to the initial purchasers in transactions exempt from the registration requirements of the Securities Act. The terms of the new notes and the outstanding notes are substantially the same in all material respects, except that (1) the new notes will be freely transferable by the holders except as otherwise provided in this prospectus; (2) holders of new notes will have no registration rights; and (3) the new notes will contain no provisions for an increase in their stated interest rate. The Exchange Offer......... We are offering to exchange up to $250.0 million aggregate principal amount of new notes for up to $250.0 million aggregate principal amount of outstanding notes. Outstanding notes may be exchanged only in integral multiples of $1,000. The new notes will evidence the same debt as the outstanding notes, and the new notes will be governed by the same indenture. Resale..................... We believe that the new notes issued in the exchange offer may be offered for resale, resold and otherwise transferred by you without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that: - the new notes are being acquired in the ordinary course of your business; - you are not participating, do not intend to participate, and have no arrangement or understanding with any person to participate, in the distribution of the new notes issued to you in the exchange offer; and - you are not an "affiliate" of ours. If any of these conditions are not satisfied and you transfer any new notes issued to you in the exchange offer without delivering a prospectus meeting the requirements of the Securities Act or without an exemption from registration of your new notes from such requirements, you may incur liability under the Securities Act. We do not assume or indemnify you against any such liability. Each broker-dealer that is issued new notes in the exchange offer for its own account in exchange for notes which were acquired by such broker-dealer as a result of market-making or other trading activities must acknowledge that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of the new notes. A broker-dealer may use this prospectus for an offer to 7 9 resell, resale or other retransfer of the new notes issued to it in the exchange offer. Record Date................ We mailed this prospectus and the related exchange offer documents to registered holders of outstanding notes on , 2000. Expiration Date............ The exchange offer will expire at 5:00 p.m., New York City time, on , 2000, or such later date and time to which we extend it. Withdrawal of Tenders...... You may withdraw your tender of outstanding notes at any time prior to 5:00 p.m., New York City time, on the expiration date. To withdraw, the exchange agent must receive a notice of withdrawal at its address indicated under "The Exchange Offer -- Exchange Agent" before 5:00 p.m., New York City time, on the expiration date. We will return to you, without charge, promptly after the expiration or termination of the exchange offer any outstanding notes that you tendered but that were not accepted for exchange. Conditions to the Exchange Offer.................... We will not be required to accept outstanding notes for exchange if the exchange offer would violate applicable law or if any legal action has been instituted or threatened that would impair our ability to proceed with the exchange offer. The exchange offer is not conditioned upon any minimum aggregate principal amount of outstanding notes being tendered. Please read the section "The Exchange Offer -- Conditions to the Exchange Offer" on page 21 for more information regarding the conditions to the exchange offer. Procedures for Tendering Outstanding Notes........ If your outstanding notes are held through The Depository Trust Company and you wish to participate in the exchange offer, you may do so through the automated tender offer program of DTC. By participating in the exchange offer, you will agree to be bound by the letter of transmittal that we are providing with this prospectus as though you had signed the letter of transmittal. By signing or agreeing to be bound by the letter of transmittal, you will represent to us that, among other things: - any new notes that you receive will be acquired in the ordinary course of your business; - you have no arrangement or understanding with any person or entity to participate in the distribution of the new notes; - if you are not a broker-dealer, you are not engaged in and do not intend to engage in the distribution of the new notes; - if you are a broker-dealer that will receive new notes for your own account in exchange for outstanding notes that were acquired as a result of market-making activities, you will deliver a prospectus, as required by law, in connection with any resale of such new notes; and - you are not our "affiliate," as defined in Rule 405 of the Securities Act, or, if you are our affiliate, you will comply with any applicable registration and prospectus delivery requirements of the Securities Act. 8 10 We will accept for exchange any and all existing notes which are properly tendered (and not withdrawn) in the exchange offer prior to the expiration date. The new notes issued pursuant to the exchange offer will be delivered promptly following the expiration date. See "The Exchange Offer -- Acceptance of Outstanding Notes for Exchange." Effect of Not Tendering.... Outstanding notes that are not tendered or that are tendered but not accepted will, following the completion of the exchange offer, continue to be subject to the existing restrictions upon transfer thereof. We will have no further obligation to provide for the registration of such outstanding notes under the Securities Act. Special Procedures for Beneficial Owners.......... If you are the beneficial owner of book-entry interests and your name does not appear on a security position listing of DTC as the holder of such book-entry interests or you own a beneficial interest in outstanding notes that are registered in the name of a broker, dealer, commercial bank, trust company or other nominee, and you wish to tender such book-entry interest or outstanding notes in the exchange offer, you should contact the registered holder promptly and instruct the registered holder to tender on your behalf. Guaranteed Delivery Procedures................. If you wish to tender your outstanding notes and cannot comply, prior to the expiration date, with the applicable procedures under the automated tender offer program of DTC, you must tender your outstanding notes according to the guaranteed delivery procedures described in "The Exchange Offer -- Procedures for Tendering Outstanding Notes -- Guaranteed Delivery" beginning on page 19. Registration Rights Agreements................. We sold the outstanding notes on June 2, 2000 and September 14, 2000 to the initial purchasers in transactions exempt from the registration requirements of the Securities Act. In connection with these sales, we entered into registration rights agreements with the initial purchasers which grant the holders of the outstanding notes exchange and registration rights. This exchange offer satisfies those rights, which terminate upon consummation of the exchange offer. You will not be entitled to any exchange or registration rights with respect to the new notes. U.S. Federal Income Tax Considerations........... The exchange of outstanding notes for new notes in the exchange offer will not be a taxable event for U.S. federal income tax purposes. Please read "United States Federal Tax Considerations" on page 38. Use of Proceeds............ We will not receive any cash proceeds from the issuance of new notes. Exchange Agent............. We have appointed Bank One Trust Company, N.A., as the exchange agent for the exchange offer. The mailing address and telephone number of the exchange agent are 1 Bank One Plaza, Mail Code IL1-0126, Chicago, Illinois 60670-0126, phone: (800) 524-9472. See "The Exchange Offer -- Exchange Agent." 9 11 SUMMARY OF THE TERMS OF THE NEW NOTES New Notes Offered.......... $250.0 million principal amount of 8 7/8% Senior Notes due 2010, Series A. Interest Rate.............. 8 7/8% per annum. Interest Payment Dates..... June 15 and December 15 of each year, beginning December 15, 2000. Maturity................... June 15, 2010. Use of Proceeds............ We will not receive any cash proceeds from the exchange offer. Ratings.................... We have obtained the following ratings on the notes: Baa1 by Moody's Investors Service, Inc., BBB+ by Standard & Poor's Ratings Services and BBB+ by Duff & Phelps Credit Rating Co. We have obtained these ratings with the understanding that the rating agencies will continue to monitor our credit ratings and will make future adjustments when they feel it is necessary. A rating reflects only the view of a rating agency. It is not a recommendation to buy, sell or hold the notes. Any rating can be revised upward or downward or withdrawn at any time by a rating agency if it decides the circumstances warrant such a change. Ranking.................... The new notes will be senior unsecured and unsubordinated obligations and will rank equally with all of our other existing and future senior and unsubordinated indebtedness. All of our operating assets are in our subsidiaries and, therefore, the new notes will be effectively subordinated to all indebtedness of those subsidiaries other than Northern Border Intermediate Limited Partnership. The indenture does not limit the amount of unsecured debt we may incur. The indenture contains restrictions on our ability to incur secured indebtedness unless the same security is also provided for the benefit of holders of the notes. Guarantee.................. Our subsidiary, Northern Border Intermediate Limited Partnership, will unconditionally guarantee the notes for so long as it has guaranteed any long-term debt. The guarantee will be a senior unsecured obligation of Northern Border Intermediate Limited Partnership and will rank equally with its guarantees under our bank credit facilities and our existing and future unsubordinated debt. Certain Covenants and Events of Default.......... We will issue the new notes under an indenture with Bank One Trust Company, N.A., as trustee. The indenture includes material financial covenants, including: - limitation on liens; and - limitation on sale-leaseback transactions. The indenture provides for events of default, including default on other significant indebtedness. Repurchase of Notes Upon a Rating Decline........... If at any time the new notes cease to be rated "investment grade" (as defined in the indenture) by either Standard & Poor's Rating Service or Moody's Investors Service, and an investment grade rating has not 10 12 been reinstated within 40 days after such decline, each holder of the new notes will have the right to require us to repurchase the holder's notes. The repurchase price will be payable in cash and will be equal to 100% of the principal amount of notes repurchased plus accrued and unpaid interest due thereon to the date of repurchase. Optional Redemption........ Upon 30 days' notification to noteholders, we may redeem the new notes. Redemption of the new notes can be in whole, at any time, or in part, from time to time. The redemption price will include a make-whole premium. Form and Denomination...... The new notes will be represented by one or more global notes. The global notes will be deposited with Bank One Trust Company, N.A., as book-entry depositary, for the benefit of DTC and its participants. Initially, you will not receive new notes in certificated form. However, subject to the provisions of the indenture described under the heading "Description of the New Notes -- Depositary Procedures," you may elect to receive certificated notes. The book-entry depositary will issue to DTC one or more certificateless book-entry interests representing each global note. DTC will operate a system of dealing in the book-entry interests by maintaining records of interests of DTC participants in book-entry interests. The global notes will be shown on, and transfers of such notes will be effected only through, records maintained in book-entry form by DTC and its direct and indirect participants. Notes issued or transferred will be in minimum principal amounts of $1,000 and multiples thereof. Same-day Settlement........ The new notes will trade in DTC's Same-day Funds Settlement System until maturity or redemption. Therefore, secondary market trading activity in the notes will be settled in immediately available funds. Trustee, Registrar and Transfer Agent............. Bank One Trust Company, N.A. Governing Law.............. The notes and the indenture relating to the notes will be governed by, and construed in accordance with, the laws of the State of New York. 11 13 USE OF PROCEEDS We will not receive any cash proceeds from the issuance of the new notes in exchange for the outstanding notes. We are making this exchange solely to satisfy our obligations under our registration rights agreements. In consideration for issuing the new notes, we will receive outstanding notes in aggregate principal amount equal to the aggregate principal amount of the new notes. CAPITALIZATION The following table sets forth our capitalization on June 30, 2000, and as adjusted to give effect to the September 2000 offering of $100.0 million of the outstanding notes, as if it had occurred on June 30, 2000. You should read our historical financial statements and notes that are incorporated by reference in this prospectus for additional information about our capital structure.
JUNE 30, 2000 ------------------------ ACTUAL AS ADJUSTED ---------- ----------- (IN THOUSANDS) Northern Border Pipeline Senior notes -- average 8.43% due from 2000 to 2003....... $ 250,000 $ 250,000 Pipeline credit agreement Term loan, variable interest rate (7.00% at June 30, 2000), due 2002...................................... 429,000 429,000 Senior notes -- 7.75%, due 2009........................... 200,000 200,000 Unamortized proceeds from termination of interest rate forward agreements..................................... 11,752 11,752 Unamortized debt discount................................. (889) (889) Northern Border Partners, L.P.(1) Senior notes -- 8.875%, due 2010.......................... 150,000 250,000 Unamortized debt discount................................. (217) (217) Black Mesa 10.7% Note agreement, due quarterly to 2004............... 15,509 15,509 ---------- ---------- Total long-term debt........................................ 1,055,155 1,155,155 ---------- ---------- Minority interests in partners' capital..................... 248,601 248,601 Partners' capital General partners.......................................... 10,239 10,239 Common unitholders........................................ 501,696 501,696 ---------- ---------- Total partners' capital........................... 511,935 511,935 ---------- ---------- Total capitalization.............................. $1,815,691 $1,915,691 ========== ==========
- --------------- (1) In June 2000, we entered into two revolving credit facilities with a group of lenders. Each credit facility is in the amount of $75.0 million and is guaranteed by Northern Border Intermediate Limited Partnership. One facility matures in 364 days from its closing and may be extended for additional 364-day periods or converted to a two-year term loan payable at maturity. The other facility terminates three years from its closing and may be extended for two additional one-year periods. 12 14 SELECTED FINANCIAL DATA (IN THOUSANDS, EXCEPT FOR PER UNIT AND OPERATING DATA) The summary financial information as of and for the years ended December 31, 1999, 1998, 1997, 1996 and 1995 is derived from our audited financial statements, and the summary financial information as of and for the six months ended June 30, 2000 is derived from our unaudited financial statements. The operating data for all periods presented is derived from our records. You should read our historical financial statements and notes that are incorporated by reference in this prospectus for additional information about our financial results.
SIX MONTHS ENDED JUNE 30, YEAR ENDED DECEMBER 31, ---------- -------------------------------------------------------------- 2000 1999 1998 1997 1996 1995 ---------- ---------- ---------- ---------- ---------- ---------- INCOME DATA: Operating revenues, net........ $ 164,053 $ 318,963 $ 217,592 $ 198,574 $ 201,943 $ 206,497 Operations and maintenance..... 27,558 53,451 44,770 37,418 28,366 26,730 Depreciation and amortization................. 30,705 54,493 43,536 40,172 46,979 47,081 Taxes other than income........ 15,698 30,952 22,012 22,836 24,390 23,886 Regulatory credit.............. -- -- (8,878) -- -- -- ---------- ---------- ---------- ---------- ---------- ---------- Operating income............... 90,092 180,067 116,152 98,148 102,208 108,800 Interest expense, net.......... 37,940 67,709 30,922 30,860 32,670 35,106 Other income................... 1,303 4,213 12,859 7,989 2,900 469 Minority interests in net income....................... 17,447 35,568 30,069 22,253 22,153 22,360 ---------- ---------- ---------- ---------- ---------- ---------- Net income to partners......... $ 36,008 $ 81,003 $ 68,020 $ 53,024 $ 50,285 $ 51,803 ========== ========== ========== ========== ========== ========== Net income per unit............ $ 1.19 $ 2.70 $ 2.27 $ 1.97 $ 1.88 $ 1.94 ========== ========== ========== ========== ========== ========== Number of units used in computation.................. 29,347 29,347 29,345 26,392 26,200 26,200 ========== ========== ========== ========== ========== ========== CASH FLOW DATA: Net cash provided by operating activities................... $ 94,758 $ 173,368 $ 103,849 $ 119,621 $ 137,534 $ 127,078 Capital expenditures........... 4,094 102,270 652,194 152,658 18,597 8,411 Distribution per unit.......... 1.30 2.44 2.30 2.20 2.20 2.20 BALANCE SHEET DATA (AT PERIOD END): Property, plant and equipment, net.......................... $1,715,649 $1,745,356 $1,730,476 $1,118,364 $ 937,859 $ 957,587 Total assets................... 1,891,699 1,863,437 1,825,766 1,266,917 1,016,484 1,041,339 Long-term debt, including current maturities........... 1,055,155 1,031,986 976,832 481,355 377,500 410,000 Minority interests in partners' capital...................... 248,601 250,450 253,031 174,424 158,089 166,789 Partners' capital.............. 511,935 515,269 507,426 500,728 410,586 419,117 OPERATING DATA (UNAUDITED): NORTHERN BORDER PIPELINE: Natural gas delivered (millions of cubic feet)..................... 423,366 834,833 608,187 621,262 630,148 614,617 Average throughput (millions of cubic feet per day).... 2,398 2,353 1,706 1,735 1,755 1,717
13 15 RATIO OF EARNINGS TO FIXED CHARGES
SIX MONTHS ENDED JUNE 30, YEAR ENDED DECEMBER 31, ---------- -------------------------------- 2000 1999 1998 1997 1996 1995 ---------- ---- ---- ---- ---- ---- Ratio of Earnings to Fixed Charges................. 2.4 2.7 3.0 3.2 3.2 3.1
These computations include us, Northern Border Intermediate Limited Partnership, Northern Border Pipeline Company, and for the period owned, Black Mesa Pipeline, Inc., Black Mesa Holdings, Inc., Black Mesa Pipeline Operations, L.L.C., Black Mesa Technologies, Inc., and Black Mesa Technologies Services L.L.C., on a consolidated basis. For these ratios, "earnings" is the amount resulting from adding the following items: - pre-tax income from continuing operations before adjustment for minority interests; and - fixed charges, net of capitalized interest. The term "fixed charges" means the sum of the following: - interest expensed and capitalized, including amortized premiums, discounts and capitalized expenses related to indebtedness; and - an estimate of the interest within rental expenses. 14 16 THE EXCHANGE OFFER EXCHANGE TERMS An aggregate of $250.0 million principal amount of outstanding notes are currently issued and outstanding. The maximum principal amount of new notes that will be issued in exchange for outstanding notes is $250.0 million. The terms of the new notes and the outstanding notes are substantially the same in all material respects, except that the new notes will be freely transferable by the holders, other than as provided in this prospectus. The new notes will bear interest at a rate of 8 7/8% per year, payable semiannually on June 15 and December 15 of each year, beginning on December 15, 2000. Holders of new notes will receive interest from June 2, 2000, the date of the original issuance of the outstanding notes, or from the date of the last payment of interest on the outstanding notes, whichever is later. Holders of new notes will not receive any interest on outstanding notes tendered and accepted for exchange. In order to exchange your outstanding notes for transferable new notes in the exchange offer, you will be required to make the following representations: - any new notes will be acquired in the ordinary course of your business; - you have no arrangement with any person to participate in the distribution of the new notes; and - you are not our "affiliate," as defined in Rule 405 of the Securities Act, or if you are our affiliate, you will comply with the applicable registration and prospectus delivery requirements of the Securities Act. Upon the terms and subject to the conditions set forth in this prospectus and in the letter of transmittal, we will accept for exchange any outstanding notes properly tendered in the exchange offer, and the exchange agent will deliver the new notes promptly after the expiration date (as defined below) of the exchange offer. We expressly reserve the right to delay acceptance of any of the tendered outstanding notes not already accepted if any conditions set forth below under "-- Conditions to the Exchange Offer" have not been satisfied or waived by us or do not comply, in whole or in part, with any applicable law. If you tender your outstanding notes, you will not be required to pay brokerage commissions or fees or, subject to the instructions in the letter of transmittal, transfer taxes with respect to the exchange of the outstanding notes. We will pay all charges, expenses and transfer taxes in connection with the exchange offer, other than certain taxes described below under "-- Transfer Taxes." EXPIRATION DATE; EXTENSIONS; TERMINATION; AMENDMENTS The exchange offer will expire at 5:00 p.m., New York City time, on , 2000, the "expiration date," unless extended by us. We expressly reserve the right to extend the exchange offer on a daily basis or for such period or periods as we may determine in our sole discretion from time to time by giving oral, confirmed in writing, or written notice to the exchange agent and by making a public announcement by press release to the Dow Jones News Service prior to 9:00 a.m., New York City time, on the first business day following the previously scheduled expiration date. During any extension of the exchange offer, all outstanding notes previously tendered, not validly withdrawn and not accepted for exchange will remain subject to the exchange offer and may be accepted for exchange by us. To the extent we are legally permitted to do so, we expressly reserve the absolute right, in our sole discretion, to: - waive any condition to the exchange offer; and - amend any of the terms of the exchange offer. Any waiver or amendment to the exchange offer will apply to all outstanding notes tendered, regardless of when or in what order the outstanding notes were tendered. If we make a material change in 15 17 the terms of the exchange offer or if we waive a material condition of the exchange offer, we will disseminate additional exchange offer materials, and we will extend the exchange offer to the extent required by law. We expressly reserve the right, in our sole discretion, to terminate the exchange offer if any of the conditions set forth under "-- Conditions to the Exchange Offer" exist. Any such termination will be followed promptly by a public announcement. In the event we terminate the exchange offer, we will give immediate notice to the exchange agent, and all outstanding notes previously tendered and not accepted for payment will be returned promptly to the tendering holders. In the event that the exchange offer is withdrawn or otherwise not completed, new notes will not be given to holders of outstanding notes who have tendered their outstanding notes. RESALE OF NEW NOTES Based on interpretations of the SEC staff set forth in no action letters issued to third parties, we believe that new notes issued under the exchange offer in exchange for outstanding notes may be offered for resale, resold and otherwise transferred by you without compliance with the registration and prospectus delivery provisions of the Securities Act, if: - you are not our "affiliate" within the meaning of Rule 405 under the Securities Act; - you are acquiring new notes in the ordinary course of your business; and - you do not intend to participate in the distribution of the new notes. If you tender outstanding notes in the exchange offer with the intention of participating in any manner in a distribution of the new notes: - you cannot rely on those interpretations by the SEC staff; and - you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction and that such a secondary resale transaction must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K. Unless an exemption from registration is otherwise available, any security holder intending to distribute new notes should be covered by an effective registration statement under the Securities Act containing the selling security holder's information required by Item 507 of Regulation S-K under the Securities Act. This prospectus may be used for an offer to resell, a resale or other retransfer of new notes only as specifically set forth in this prospectus. Only broker-dealers that acquired the outstanding notes as a result of market-making activities or other trading activities may participate in the exchange offer. Each broker-dealer that receives new notes for its own account in exchange for outstanding notes, where such outstanding notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of the new notes. Under our registration rights agreements, we are required to allow such broker-dealers and other persons, if any, subject to similar prospectus delivery requirements, to use this prospectus in connection with the resale of new notes. Please read the section captioned "Plan of Distribution" for more details regarding the transfer of new notes. ACCEPTANCE OF OUTSTANDING NOTES FOR EXCHANGE We will accept for exchange outstanding notes validly tendered pursuant to the exchange offer, or defectively tendered, if such defect has been waived by us, and not withdrawn prior to the later of: (1) the expiration date of the exchange offer; and (2) the satisfaction or waiver of the conditions specified below under "-- Conditions to the Exchange Offer." We will not accept outstanding notes for exchange 16 18 subsequent to the expiration date of the exchange offer. Tenders of outstanding notes will be accepted only in principal amounts equal to $1,000 or integral multiples thereof. We expressly reserve the right, in our sole discretion, to: - delay acceptance for exchange of outstanding notes tendered under the exchange offer, subject to Rule 14e-1 under the Exchange Act, which requires that an offeror pay the consideration offered or return the securities deposited by or on behalf of the holders promptly after the termination or withdrawal of a tender offer, or - terminate the exchange offer and not accept for exchange any outstanding notes not theretofore accepted for exchange, if any of the conditions set forth below under "-- Conditions to the Exchange Offer" have not been satisfied or waived by us or in order to comply in whole or in part with any applicable law. In all cases, new notes will be issued only after timely receipt by the exchange agent of certificates representing outstanding notes, or confirmation of book-entry transfer, a properly completed and duly executed letter of transmittal, or a manually signed facsimile thereof, and any other required documents. For purposes of the exchange offer, we will be deemed to have accepted for exchange validly tendered outstanding notes, or defectively tendered outstanding notes with respect to which we have waived such defect, if, as and when we give oral, confirmed in writing, or written notice to the exchange agent. Promptly after the expiration date, we will deposit the new notes with the exchange agent, who will act as agent for the tendering holders for the purpose of receiving the new notes and transmitting them to the holders. The exchange agent will deliver the new notes to holders of outstanding notes accepted for exchange after the exchange agent receives the new notes. If for any reason, we delay acceptance for exchange of validly tendered outstanding notes or we are unable to accept for exchange validly tendered outstanding notes, then the exchange agent may, nevertheless, on our behalf, retain tendered outstanding notes, without prejudice to our rights described under "-- Expiration Date; Extensions; Termination; Amendments," "-- Withdrawal of Tenders" and "-- Conditions to the Exchange Offer," subject to Rule 14e-1 under the Exchange Act, which requires that an offeror pay the consideration offered or return the securities deposited by or on behalf of the holders thereof promptly after the termination or withdrawal of a tender offer. If any tendered outstanding notes are not accepted for exchange for any reason, or if certificates are submitted evidencing more outstanding notes than those that are tendered, certificates evidencing outstanding notes that are not exchanged will be returned, without expense, to the tendering holder, or, in the case of outstanding notes tendered by book-entry transfer into the exchange agent's account at a book-entry transfer facility under the procedure set forth under "-- Procedures for Tendering Outstanding Notes -- Book-Entry Transfer," such outstanding notes will be credited to the account maintained at such book-entry transfer facility from which such outstanding notes were delivered, unless otherwise required by such holder under "Special Delivery Instructions" in the letter of transmittal, promptly following the exchange date or the termination of the exchange offer. Tendering holders of outstanding notes exchanged in the exchange offer will not be obligated to pay brokerage commissions or transfer taxes with respect to the exchange of their outstanding notes other than as described in "-- Transfer Taxes" or in Instruction 6 to the letter of transmittal. We will pay all other charges and expenses in connection with the exchange offer. PROCEDURES FOR TENDERING OUTSTANDING NOTES Any beneficial owner whose outstanding notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee or held through a book-entry transfer facility and who wishes to tender outstanding notes should contact such registered holder promptly and instruct such registered holder to tender outstanding notes on such beneficial owner's behalf. 17 19 Tender of Outstanding Notes Held Through DTC. The exchange agent and DTC have confirmed that the exchange offer is eligible for the DTC automated tender offer program. Accordingly, DTC participants may electronically transmit their acceptance of the exchange offer by causing DTC to transfer outstanding notes to the exchange agent in accordance with DTC's automated tender offer program procedures for transfer. DTC will then send an agent's message to the exchange agent. The term "agent's message" means a message transmitted by DTC, received by the exchange agent and forming part of the book-entry confirmation, which states that DTC has received an express acknowledgement from the participant in DTC tendering outstanding notes that are the subject of that book-entry confirmation that the participant has received and agrees to be bound by the terms of the letter of transmittal, and that we may enforce such agreement against such participant. In the case of an agent's message relating to guaranteed delivery, the term means a message transmitted by DTC and received by the exchange agent, which states that DTC has received an express acknowledgement from the participant in DTC tendering outstanding notes that they have received and agree to be bound by the notice of guaranteed delivery. Tender of Outstanding Notes Held in Physical Form. For a holder to validly tender outstanding notes held in physical form: - the exchange agent must receive at its address set forth in this prospectus a properly completed and validly executed letter of transmittal, or a manually signed facsimile thereof, together with any signature guarantees and any other documents required by the instructions to the letter of transmittal; and - the exchange agent must receive certificates for tendered outstanding notes at such address, or such outstanding notes must be transferred pursuant to the procedures for book-entry transfer described above. A confirmation of such book-entry transfer must be received by the exchange agent prior to the expiration date of the exchange offer. A holder who desires to tender outstanding notes and who cannot comply with the procedures set forth herein for tender on a timely basis or whose outstanding notes are not immediately available must comply with the procedures for guaranteed delivery set forth below. LETTERS OF TRANSMITTAL AND OUTSTANDING NOTES SHOULD BE SENT ONLY TO THE EXCHANGE AGENT AND NOT TO US OR TO ANY BOOK-ENTRY TRANSFER FACILITY. THE METHOD OF DELIVERY OF OUTSTANDING NOTES, LETTERS OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION AND RISK OF THE HOLDER TENDERING OUTSTANDING NOTES. DELIVERY OF SUCH DOCUMENTS WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF SUCH DELIVERY IS BY MAIL, WE SUGGEST THAT THE HOLDER USE PROPERLY INSURED, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, AND THAT THE MAILING BE MADE SUFFICIENTLY IN ADVANCE OF THE EXPIRATION DATE OF THE EXCHANGE OFFER TO PERMIT DELIVERY TO THE EXCHANGE AGENT PRIOR TO SUCH DATE. NO ALTERNATIVE, CONDITIONAL OR CONTINGENT TENDERS OF OUTSTANDING NOTES WILL BE ACCEPTED. Signature Guarantees. Signatures on the letter of transmittal must be guaranteed by an eligible institution unless: - the letter of transmittal is signed by the registered holder of the outstanding notes tendered therewith, or by a participant in one of the book-entry transfer facilities whose name appears on a security position listing it as the owner of those outstanding notes, or if any outstanding notes for principal amounts not tendered are to be issued directly to the holder, or, if tendered by a participant in one of the book-entry transfer facilities, any outstanding notes for principal amounts not tendered or not accepted for exchange are to be credited to the participant's account at the 18 20 book-entry transfer facility, and neither the "Special Issuance Instructions" nor the "Special Delivery Instructions" box on the letter of transmittal has been completed, or - the outstanding notes are tendered for the account of an eligible institution. An eligible institution is a firm that is a participant in the Security Transfer Agents Medallion Program or the Stock Exchanges Medallion Program, which is generally a member of a registered national securities exchange, a member of the National Association of Securities Dealers, Inc., or a commercial bank or trust company having an office in the United States. Book-Entry Transfer. The exchange agent will seek to establish a new account or utilize an outstanding account with respect to the outstanding notes at DTC promptly after the date of this prospectus. Any financial institution that is a participant in the book-entry transfer facility system and whose name appears on a security position listing it as the owner of the outstanding notes may make book-entry delivery of outstanding notes by causing the book-entry transfer facility to transfer such outstanding notes into the exchange agent's account. HOWEVER, ALTHOUGH DELIVERY OF OUTSTANDING NOTES MAY BE EFFECTED THROUGH BOOK-ENTRY TRANSFER INTO THE EXCHANGE AGENT'S ACCOUNT AT A BOOK-ENTRY TRANSFER FACILITY, A PROPERLY COMPLETED AND VALIDLY EXECUTED LETTER OF TRANSMITTAL, OR A MANUALLY SIGNED FACSIMILE THEREOF, MUST BE RECEIVED BY THE EXCHANGE AGENT AT ITS ADDRESS SET FORTH IN THIS PROSPECTUS ON OR PRIOR TO THE EXPIRATION DATE OF THE EXCHANGE OFFER, OR ELSE THE GUARANTEED DELIVERY PROCEDURES DESCRIBED BELOW MUST BE COMPLIED WITH. The confirmation of a book-entry transfer of outstanding notes into the exchange agent's account at a book-entry transfer facility is referred to in this prospectus as a "book-entry confirmation." Delivery of documents to the book-entry transfer facility in accordance with that book-entry transfer facility's procedures does not constitute delivery to the exchange agent. Guaranteed Delivery. If you wish to tender your outstanding notes and: - certificates representing your outstanding notes are not lost but are not immediately available; - time will not permit your letter of transmittal, certificates representing your outstanding notes and all other required documents to reach the exchange agent on or prior to the expiration date of the exchange offer, or - the procedures for book-entry transfer cannot be completed on or prior to the expiration date of the exchange offer, then, you may tender if both of the following are complied with: (1) your tender is made by or through an eligible institution; and (2) on or prior to the expiration date of the exchange offer, the exchange agent has received from the eligible institution a properly completed and validly executed notice of guaranteed delivery, by manually signed facsimile transmission, mail or hand delivery, in substantially the form provided with this prospectus. The notice of guaranteed delivery must: (a) set forth your name and address, the registered number(s) of your outstanding notes and the principal amount of outstanding notes tendered; (b) state that the tender is being made thereby; (c) guarantee that, within three New York Stock Exchange trading days after the date of the notice of guaranteed delivery, the letter of transmittal or facsimile thereof properly completed and validly executed, together with certificates representing the outstanding notes, or a book-entry confirmation, and any other documents required by the letter of transmittal and the instructions thereto, will be deposited by the eligible institution with the exchange agent; and 19 21 (d) the exchange agent receives the properly completed and validly executed letter of transmittal or facsimile thereof with any required signature guarantees, together with certificates for all outstanding notes in proper form for transfer, or a book-entry confirmation, and any other required documents, within three New York Stock Exchange trading days after the date of the notice of guaranteed delivery. Other Matters. New notes will be issued in exchange for outstanding notes accepted for exchange only after timely receipt by the exchange agent of: - certificates for (or a timely book-entry confirmation with respect to) your outstanding notes, a properly completed and duly executed letter of transmittal or facsimile thereof with any required signature guarantees, or, in the case of a book-entry transfer, an agent's message; and - any other documents required by the letter of transmittal. All questions as to the form of all documents and the validity, including time of receipt, and acceptance of all tenders of outstanding notes will be determined by us, in our sole discretion, the determination of which shall be final and binding. ALTERNATIVE, CONDITIONAL OR CONTINGENT TENDERS OF OUTSTANDING NOTES WILL NOT BE CONSIDERED VALID. We reserve the absolute right to reject any or all tenders of outstanding notes that are not in proper form or the acceptance of which, in our opinion, would be unlawful. We also reserve the right to waive any defects, irregularities or conditions of tender as to particular outstanding notes. Our interpretation of the terms and conditions of the exchange offer, including the instructions in the letter of transmittal, will be final and binding. Any defect or irregularity in connection with tenders of outstanding notes must be cured within the time we determine, unless waived by us. Tenders of outstanding notes will not be deemed to have been made until all defects and irregularities have been waived by us or cured. Neither we, the exchange agent nor any other person will be under any duty to give notice of any defects or irregularities in tenders of outstanding notes, or will incur any liability to holders for failure to give any such notice. By signing or agreeing to be bound by the letter of transmittal, you will represent to us that, among other things: - any new notes that you receive will be acquired in the ordinary course of your business; - you have no arrangement or understanding with any person or entity to participate in the distribution of the new notes; - if you are not a broker-dealer, you are not engaged in and do not intend to engage in the distribution of the new notes; 20 22 - if you are a broker-dealer that will receive new notes for your own account in exchange for outstanding notes that were acquired as a result of market-making activities, you will deliver a prospectus, as required by law, in connection with any resale of those new notes; and - you are not our "affiliate," as defined in Rule 405 of the Securities Act, or, if you are an affiliate, you will comply with any applicable registration and prospectus delivery requirements of the Securities Act. WITHDRAWAL OF TENDERS Except as otherwise provided in this prospectus, you may withdraw your tender of outstanding notes at any time prior to 5:00 p.m., New York City time, on the expiration date. For a withdrawal to be effective: - the exchange agent must receive a written notice of withdrawal at its address set forth below under "-- Exchange Agent," or - you must comply with the appropriate procedures of DTC's automated tender offer program system. Any notice of withdrawal must: - specify the name of the person who tendered the outstanding notes to be withdrawn; and - identify the outstanding notes to be withdrawn, including the principal amount of the outstanding notes. If outstanding notes have been tendered pursuant to the procedure for book-entry transfer described above, any notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawn outstanding notes and otherwise comply with the procedures of DTC. We will determine all questions as to the validity, form, eligibility and time of receipt of notice of withdrawal, and our determination shall be final and binding on all parties. We will deem any outstanding notes so withdrawn not to have been validly tendered for exchange for purposes of the exchange offer. Any outstanding notes that have been tendered for exchange but that are not exchanged for any reason will be returned to their holder without cost to the holder or, in the case of outstanding notes tendered by book-entry transfer into the exchange agent's account at DTC according to the procedures described above, such outstanding notes will be credited to an account maintained with DTC for the outstanding notes. This return or crediting will take place as soon as practicable after withdrawal, rejection of tender or termination of the exchange offer. You may retender properly withdrawn outstanding notes by following one of the procedures described under "-- Procedures for Tendering Outstanding Notes" at any time on or prior to the expiration date. CONDITIONS TO THE EXCHANGE OFFER We will not be required to accept for exchange, or exchange any new notes for, any outstanding notes tendered, and we may terminate, extend or amend the exchange offer and may, subject to Rule 14e-1 under the Exchange Act, which requires that an offeror pay the consideration offered or return the securities deposited by or on behalf of the holders thereof promptly after the termination or withdrawal of a tender offer, postpone the acceptance for exchange of outstanding notes so tendered if, on or prior to the expiration date of the exchange offer, the following shall have occurred: - we have determined that the offering and sales under the registration statement, the filing of such registration statement or the maintenance of its effectiveness would require disclosure of or would interfere in any material respect with any material financing, merger, offering or other transaction involving us or would otherwise require disclosure of nonpublic information that could materially and adversely affect us. 21 23 The conditions to the exchange offer are for our sole benefit and may be asserted by us in our sole discretion or may be waived by us, in whole or in part, in our sole discretion, whether or not any other condition of the exchange offer also is waived. We have not made a decision as to what circumstances would lead us to waive any condition, and any waiver would depend on circumstances prevailing at the time of that waiver. Any determination by us concerning the events described in this section shall be final and binding upon all persons. ALTHOUGH WE HAVE NO PRESENT PLANS OR ARRANGEMENTS TO DO SO, WE RESERVE THE RIGHT TO AMEND, AT ANY TIME, THE TERMS OF THE EXCHANGE OFFER. WE WILL GIVE HOLDERS NOTICE OF ANY AMENDMENTS IF REQUIRED BY APPLICABLE LAW. TRANSFER TAXES We will pay all transfer taxes applicable to the transfer and exchange of outstanding notes pursuant to the exchange offer. If, however: - delivery of the new notes and/or certificates for outstanding notes for principal amounts not exchanged, are to be made to any person other than the record holder of the outstanding notes tendered; - tendered certificates for outstanding notes are recorded in the name of any person other than the person signing any letter of transmittal; or - a transfer tax is imposed for any reason other than the transfer and exchange of outstanding notes to us or our order, then the amount of any such transfer taxes, whether imposed on the record holder or any other person, will be payable by the tendering holder prior to the issuance of the new notes. CONSEQUENCES OF FAILURE TO EXCHANGE If you do not exchange your outstanding notes for new notes in the exchange offer, you will remain subject to the restrictions on transfer of the outstanding notes: - as set forth in the legend printed on the notes as a consequence of the issuance of the outstanding notes pursuant to the exemptions from, or in transactions not subject to, the registration requirements of the Securities Act and applicable state securities laws; and - otherwise set forth in the memorandums distributed in connection with the private offerings of the outstanding notes. In general, you may not offer or sell the outstanding notes unless they are registered under the Securities Act, or if the offer or sale is exempt from registration under the Securities Act and applicable state securities laws. Except as required by the registration rights agreements, we do not intend to register resales of the outstanding notes under the Securities Act. Based on interpretations of the SEC staff, you may offer for resale, resell or otherwise transfer new notes issued in the exchange offer without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that (1) you are not our "affiliate" within the meaning of Rule 405 under the Securities Act, (2) you acquired the new notes in the ordinary course of your business and (3) you have no arrangement or understanding with respect to the distribution of the new notes to be acquired in the exchange offer. If you tender outstanding notes in the exchange offer for the purpose of participating in a distribution of the new notes: - you cannot rely on the applicable interpretations of the SEC; and - you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction and that such a secondary resale transaction must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K. 22 24 EXCHANGE AGENT Bank One Trust Company, NA has been appointed as exchange agent for the exchange offer. You should direct questions and requests for assistance, requests for additional copies of this prospectus, the letter of transmittal or any other documents to the exchange agent. You should send certificates for outstanding notes, letters of transmittal and any other required documents to the exchange agent addressed as follows: Bank One Trust Company, NA 1 Bank One Plaza Mail Code IL1-0126 Chicago, Illinois 60670-0126 23 25 DESCRIPTION OF THE NEW NOTES We will issue the new notes under an indenture dated as of June 2, 2000, as amended by a supplemental indenture dated September 14, 2000, between us and Bank One Trust Company, N.A., as trustee. The outstanding notes were also issued under the indenture. The terms of the outstanding notes are identical in all material respects to the terms of the new notes, except that the outstanding notes contain terms with respect to transfer restrictions (and therefore are not freely tradeable). The terms of the notes include those set forth in the indenture and those made a part of the indenture by reference to the Trust Indenture Act of 1939. The following description is a summary of the material provisions of the notes and the indenture. It does not restate the indenture in its entirety. We urge you to read the indenture because it, and not this description, defines your rights as holders of the notes. Copies of the indenture are available at the offices of the trustee. THE NOTES The notes: - are general unsecured obligations; - are unconditionally guaranteed by our subsidiary, Northern Border Intermediate Limited Partnership, for so long as that subsidiary has incurred or guaranteed any long-term debt; - rank equally with all of our other existing and future senior and unsubordinated debt; - rank junior to any of our secured debt to the extent of the security for that debt; - rank senior to all of our future subordinated debt; and - are non-recourse to our general partners. See "-- Non-Recourse; No Personal Liability." Subject to the exceptions, and subject to compliance with the applicable requirements, set forth in the indenture, we may discharge our obligations under the indenture with respect to the notes as described under "-- Discharge and Defeasance." PRINCIPAL, MATURITY AND INTEREST The notes will mature on June 15, 2010. The notes are currently limited to $250.0 million aggregate principal amount. We may issue additional notes of this series from time to time, without the consent of the holders of the notes, in compliance with the covenants of the indenture. Interest on the notes will: - accrue from June 2, 2000 at the rate of 8 7/8% per year; - be payable semiannually on each June 15 and December 15, commencing December 15, 2000; - be payable to the person in whose name the notes are registered at the close of business on the relevant June 1 and December 1 preceding the applicable interest payment date; - be computed on the basis of a 360-day year comprised of twelve 30-day months; and - be payable on overdue interest to the extent permitted by law at the same rate as interest is payable on principal. If any interest payment date, maturity date or redemption date falls on a day that is not a business day, the payment will be made on the next business day with the same force and effect as if made on the relevant interest payment date, maturity date or redemption date. Unless we default on a payment, no interest will accrue for the period from and after the applicable maturity date or redemption date. 24 26 DENOMINATIONS The notes will be issued in registered form in denominations of $1,000 each or integral multiples thereof. OPTIONAL REDEMPTION The notes will be redeemable, in whole or in part, at our option exercisable at any time or from time to time upon not less than 30 and not more than 60 days' notice as provided in the indenture, on any date prior to their maturity at a redemption price equal to: - the principal amount of such notes; plus - accrued and unpaid interest thereon, if any, to the redemption date, plus - a make-whole premium described below, if any. The redemption price will never be less than 100% of the principal amount of the relevant notes plus accrued and unpaid interest thereon, if any, to the redemption date. The amount of the make-whole premium with respect to any note to be redeemed will be equal to the excess, if any, of: (1) the sum of the present values, calculated as of the redemption date, of: - each interest payment that, but for such redemption, would have been payable on the note or portion thereof being redeemed on each interest payment date occurring after the redemption date (excluding any accrued interest for the period prior to the redemption date); and - the principal amount that, but for such redemption, would have been payable at the final maturity of the note being redeemed; over (2) the principal amount of the note being redeemed. The present values of interest and principal payments referred to in clause (1) above will be determined in accordance with generally accepted principles of financial analysis. These present values will be calculated by discounting the amount of each payment of interest or principal from the date that each such payment would have been payable, but for the redemption, to the redemption date at a discount rate equal to the comparable treasury yield (as defined below) plus 35 basis points. The make-whole premium will be calculated by an independent investment banking institution of national standing appointed by us. If we fail to appoint an independent investment banker at least 45 days prior to the redemption date, or if the independent investment banker we appoint is unwilling or unable to make the calculation, the calculation will be made by Banc of America Securities LLC. If Banc of America Securities LLC is unwilling or unable to make the calculation, we will appoint an independent investment banking institution of national standing to make the calculation. For purposes of determining the make-whole premium, comparable treasury yield means a rate of interest per annum equal to the weekly average yield to maturity of United States Treasury Securities that have a constant maturity that corresponds to the remaining term to maturity of the notes, calculated to the nearest 1/12th of a year. The comparable treasury yield will be determined as of the third business day immediately preceding the applicable redemption date. The weekly average yields of United States Treasury Securities will be determined by reference to the most recent statistical release published by the Federal Reserve Bank of New York and designated "H.15(519) Selected Interest Rates" or any successor release. If the H.15 statistical release sets forth a weekly average yield for United States Treasury Securities having a constant maturity that is the same as the remaining term calculated as set forth above, then the comparable treasury yield will be equal to such weekly average yield. In all other cases, the comparable treasury yield will be calculated by interpolation 25 27 on a straight-line basis, between the weekly average yields on the United States Treasury Securities that have a constant maturity closest to and greater than the remaining term and the United States Treasury Securities that have a constant maturity closest to and less than the remaining term (in each case as set forth in the H.15 statistical release or any successor release). Any weekly average yields calculated by interpolation will be rounded to the nearest 1/100th of 1%, with any figure of 1/200th of 1% or above being rounded upward. If weekly average yields for United States Treasury Securities are not available in the H.15 statistical release or otherwise, then the comparable treasury yield will be calculated by interpolation of comparable rates selected by an independent investment banker selected in the manner described in the second preceding paragraph. In the case of any partial redemption, selection of the notes for redemption will be made by the trustee on a pro rata basis, by lot or by such other method as the trustee in its sole discretion shall deem to be fair and appropriate. Notes will only be redeemed in multiples of $1,000 in original principal amount. If any note is to be redeemed in part only, the notice of redemption will state the portion of the principal amount to be redeemed. A replacement note in principal amount equal to the unredeemed portion of the original note will be issued upon the cancellation of the original note. SINKING FUND We are not required to make mandatory redemption or sinking fund payments with respect to the notes. METHOD OF PAYMENT The note requires that payment in respect of the global notes be made by wire transfer of immediately available funds to the accounts specified by the holders of the notes. If no such account is specified, we may choose to make payment at the office of the trustee or by mailing a check to the holder's registered address. REPURCHASE OF NOTES UPON A RATING DECLINE If a Rating Decline (as defined below under "-- Definitions") occurs and an Investment Grade (as defined below under "-- Definitions") rating has not been reinstated within 40 days after such occurrence, each holder of the notes shall have the right to require us to repurchase the holder's notes. The repurchase price shall be payable in cash and shall be equal to 100% of the principal amount of notes repurchased plus accrued and unpaid interest thereon, if any, to the date of repurchase. Within 10 days following any Rating Decline, we will mail an initial notice to each holder with a copy to the trustee stating that a Rating Decline has occurred and a repurchase of the notes by us may be required. If within 30 days following such initial notice, the Rating Agency or Agencies (as defined below under "-- Definitions") which downgraded the notes shall have failed to reinstate an Investment Grade rating to the notes, then we will, on the 40th day following such Rating Decline, mail a subsequent notice to each holder with a copy to the trustee stating: (1) that an Investment Grade rating of the notes has not been reinstated and that such holder has the right to require us to repurchase such holder's notes at a repurchase price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of repurchase; (2) the repurchase date, which shall be a business day and be not earlier than 30 days or later than 60 days from the date the initial notice is mailed; (3) that interest on any note not tendered will continue to accrue; (4) that interest on any note accepted for payment in a repurchase shall cease to accrue after the repurchase date; 26 28 (5) that holders electing to have a note purchased will be required to surrender the note (if the notes are not in book-entry form), with the form entitled "Option of Holder to Elect Purchase" on the reverse of the note completed, to the paying agent at the address specified in the notice prior to the close of business on the repurchase date; (6) that holders will be entitled to withdraw their election if the paying agent receives, not later than the close of business on the third business day, or such shorter periods as may be required by applicable law, preceding the repurchase date, a telegram, facsimile transmission or letter setting forth the name of the holder, the principal amount of notes the holder delivered for purchase, and a statement that such holder is withdrawing his election to have such notes purchased; and (7) that holders which elect to have their notes purchased only in part will be issued replacement notes (if the notes are not in book-entry form) in a principal amount equal to the unpurchased portion of the notes surrendered. On the repurchase date, we will: (1) accept for payment notes or portions thereof tendered pursuant to the Rating Decline, (2) deposit with the trustee money sufficient to pay the purchase price of all notes or portions thereof so tendered, and (3) for notes not in book-entry form, deliver or cause to be delivered to the trustee notes so accepted together with an officers' certificate identifying the notes or portions thereof tendered to us. The trustee shall promptly mail to the holders of the notes so accepted payment in an amount equal to the purchase price plus accrued and unpaid interest thereon, and promptly authenticate and mail to such holders a replacement note (if the notes are not in book-entry form) in a principal amount equal to any unpurchased portion of the notes surrendered. We will publicly announce the results of any repurchases of notes upon a Rating Decline on or as soon as practicable after the repurchase date. We will comply with all applicable tender offer rules, including without limitation Rule 14e-1 under the Exchange Act, in connection with any repurchases of notes upon a Rating Decline. CERTAIN COVENANTS The indenture does not limit the amount of indebtedness or other obligations that we may incur and does not contain provisions that give you the right to require us to repurchase your notes upon a change of control. The indenture contains the following material financial covenants: Limitation on Liens. We will not, and will not permit any of our Subsidiaries (as defined below under "-- Definitions") to, issue, create, assume or guarantee any indebtedness for borrowed money secured by a lien upon any of our Property (as defined below under "-- Definitions") or the Property of any Subsidiary or upon any shares of stock or indebtedness of any Subsidiary that owns or leases any Property (whether such Property, shares of stock or indebtedness is now existing or owned or subsequently created or acquired) without effectively providing that the notes will be secured equally and ratably with or prior to such secured debt until such time as such debt is no longer secured by a lien. The foregoing restriction does not require us to secure the notes if the liens consist of either Permitted Liens (as defined below under "-- Definitions") or if the indebtedness secured by these liens is Exempted Indebtedness (as defined below under "-- Definitions"). Limitation on Sale-Leaseback Transactions. We will not, and will not permit any of our Subsidiaries to, enter into any Sale-Leaseback Transaction (as defined below under "-- Definitions") with respect to any Property unless: - we or our Subsidiary, as the case may be, would be entitled, pursuant to the provisions of the indenture, to incur indebtedness secured by a lien on the Property involved in such transaction at 27 29 least equal in amount to the Attributable Indebtedness (as defined below under "-- Definitions") with respect to that Sale-Leaseback Transaction without equally and ratably securing the notes pursuant to the covenant described above in "-- Limitation on Liens;" - within 12 months after the effective date of such transaction, we, or our Subsidiary, as the case may be, apply an amount equal to not less than the Attributable Indebtedness of such Sale-Leaseback Transaction either (1) to the voluntary defeasance or the repayment, redemption or retirement of the notes or other indebtedness for borrowed money of ours or any of our Subsidiaries that matures more than one year after the creation of such indebtedness or (2) to the acquisition, construction, development or improvement of any Property used or useful or (3) any combination of applications referred to in (1) and (2) above. Exempted Indebtedness. Notwithstanding the foregoing limitations on liens and Sale-Leaseback Transactions, we and our Subsidiaries may issue, incur, create, assume, or guarantee indebtedness secured by a lien (other than a Permitted Lien) without securing the notes, or may enter into Sale-Leaseback Transactions without complying with the preceding paragraph, or enter into a combination of such transactions, if the sum of the aggregate principal amount of all such indebtedness and the Attributable Indebtedness of all such Sale-Leaseback Transactions then in existence, in each case not otherwise permitted in the preceding three paragraphs, does not at the time incurred exceed 10% of our Consolidated Net Tangible Assets (as defined below under "-- Definitions"). Payments for Consent. We will not, and will not permit any of our Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration whether by way of fee, interest or otherwise to or for the benefit of any holder of notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of the indenture or the notes unless such consideration is offered to be paid and is paid to all holders of the notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement. Reports. So long as any notes are outstanding, and pursuant to Section 314(a) of the Trust Indenture Act, we will: (1) for as long as we are required to file information with the SEC pursuant to the Exchange Act, file with the trustee, within 15 days after we are required to file with the SEC copies of the annual report and of the information, documents and other reports which we may be required to file with the SEC pursuant to the Exchange Act; or (2) if we are not required to file information with the SEC pursuant to the Exchange Act, file with the trustee and the SEC, in accordance with rules and regulations prescribed from time to time by the SEC, any supplementary and periodic information, documents and reports which may be required pursuant to the Exchange Act, in respect of a security listed and registered on a national securities exchange as may be prescribed in such rules and regulations. MERGER, AMALGAMATION, CONSOLIDATION AND SALE OF ASSETS We and Northern Border Intermediate Limited Partnership will not merge, amalgamate or consolidate with or into any other entity or sell, convey, lease, transfer or otherwise dispose of all or substantially all of our property or assets to any person, whether in a single transaction or series of related transactions, except pursuant to Article XVI of our partnership agreement, and unless: - either we or Northern Border Intermediate Limited Partnership, as the case may be, is the surviving entity, or the surviving entity: - is an entity organized under the laws of the United States, a state thereof or the District of Columbia, or Canada or a province thereof; and - expressly assumes by supplemental indenture satisfactory to the trustee, the due and punctual payment of the principal of, premium, if any, and interest on all of the notes, and the due and 28 30 punctual performance or observance of all the other covenants and conditions of the indenture to be performed or observed by us; - immediately before and immediately after giving effect to the transaction or series of transactions, no default or event of default has occurred and is continuing; and - we have delivered to the trustee an officer's certificate and opinion of counsel, each stating that the merger, amalgamation, consolidation, sale, conveyance, transfer, lease or other disposition, and if a supplemental indenture is required, the supplemental indenture, comply with the conditions set forth above and all other conditions precedent to the transaction have been complied with. Notwithstanding the foregoing, any successor (including pursuant to Article XVI of our partnership agreement) must comply with the terms of the indenture, including the requirement that the successor execute and deliver a supplemental indenture. EVENTS OF DEFAULT "Event of default" when used in the indenture, means any of the following: - failure to pay the principal of or any premium on any note when due; - failure to pay interest on any note for 30 days; - failure to perform any other term, covenant or warranty in the indenture that continues for 90 days after being given written notice; - default by us or any of our Subsidiaries in the payment at the final maturity, after the expiration of any applicable grace period, of principal of, premium, if any, or interest on indebtedness for money borrowed in the principal amount then outstanding of $25.0 million or more, or acceleration of any indebtedness of $25.0 million or more so that it becomes due and payable prior to its maturity date and such acceleration is not rescinded within 60 days after notice to us in accordance with the indenture; - certain events of bankruptcy, insolvency or reorganization. The trustee may withhold notice to the holders of notes of any default, except in the payment of principal or interest, if it considers such withholding of notice to be in the best interests of the holders. If an event of default occurs and continues, other than certain events of bankruptcy, insolvency, or reorganization, the trustee or the holders of at least 25% in aggregate principal amount of the notes may declare the entire principal of all the outstanding notes to be due and payable immediately. If this happens, subject to certain conditions, the holders of a majority of the aggregate principal amount of the notes can void the declaration. If an event of default relating to certain events of bankruptcy, insolvency, or reorganization occurs, the notes are due and payable immediately. Other than its duties in case of a default, a trustee is not obligated to exercise any of its rights or powers under the indenture at the request, order or direction of any holders, unless the holders offer to the trustee indemnity satisfactory to the trustee. If they provide this indemnification, the holders of a majority in principal amount of the notes may direct the time, method and place of conducting any proceeding or any remedy available to the trustee, or exercising any power conferred upon the trustee. 29 31 DEFINITIONS As used in the foregoing description of certain covenants by which we are bound pursuant to the indenture, the following terms have the following meanings: "Attributable Indebtedness" means with respect to a Sale-Leaseback Transaction, at the time of determination, the lesser of: - the fair market value (as determined in good faith by our Partnership Policy Committee) of such assets; - the present value of the total net amount of rent required to be paid under the lease involved in such Sale-Leaseback Transaction during the remaining term thereof (including any renewal term exercisable at the lessee's option or period for which such lease has been extended), discounted at the rate of interest set forth or implicit in the terms of such lease or, if not practicable to determine such rate, the weighted average interest rate per annum borne by the notes compounded semiannually; or - if the obligation with respect to the Sale-Leaseback Transaction constitutes an obligation that is required to be classified and accounted for as a capital lease obligation (as defined in the indenture) for financial reporting purposes in accordance with generally accepted accounting principles, the amount equal to the capitalized amount of such obligation determined in accordance with generally accepted accounting principles and included in the financial statements of the lessee. For purposes of the foregoing definition, rent will not include amounts required to be paid by the lessee, whether or not designated as rent or additional rent, on account of or contingent upon maintenance and repairs, insurance, taxes, assessments, water rates and similar charges. In the case of any lease that is terminable by the lessee upon the payment of a penalty, such net amount shall be the lesser of the net amount determined assuming termination upon the first date such lease may be terminated (in which case the net amount shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated) or the net amount determined assuming no such termination. "Consolidated Net Tangible Assets" means, at any date of determination, the aggregate amount of total assets included on the most recent quarterly or annual balance sheet of us and our consolidated subsidiaries prepared in accordance with generally accepted accounting principles less applicable reserves reflected in such balance sheet, after deducting the following amounts: - all current liabilities reflected in such balance sheet; and - all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles reflected in such balance sheet. "Investment Grade" means BBB- or above, in the case of S&P (or its equivalent under any successor Rating Categories of S&P), Baa3 or above, in the case of Moody's (or its equivalent under any successor Rating Categories of Moody's), and the equivalent in respect of the Rating Categories of any Rating Agencies substituted for S&P or Moody's. "Moody's" means Moody's Investors Services, Inc. and its successors. "Permitted Liens" include: - liens existing at or provided for under the terms of agreements existing on the date of the initial issuance of the notes; - liens on property, shares of stock, indebtedness or other assets of any person (which is not a subsidiary) existing at the time such person is merged into or consolidated with or into us or any of our Subsidiaries, provided that such liens are not incurred in anticipation of such person becoming 30 32 a Subsidiary, or liens existing at the time of a sale, lease or other disposition of the properties of a person as an entirety or substantially as an entirety to us or any of our Subsidiaries; - liens on property, shares of stock, indebtedness for borrowed money or other assets existing at the time of acquisition thereof by us or any of our Subsidiaries, or liens thereon to secure the payment of all or any part of the purchase price thereof; - liens on property, shares of stock, indebtedness for borrowed money or other assets to secure any indebtedness for borrowed money incurred prior to, at the time of, or within 24 months after, the latest of the acquisition thereof, or, in the case of property, the completion of construction, the completion of development or improvements or the commencement of commercial operation of such property for the purpose of financing all or any part of the purchase price thereof, such construction or the making of such development or improvements; - liens to secure indebtedness owing to us or our Subsidiaries; - liens on property to secure all or part of the cost of acquiring, constructing, altering, improving, developing or repairing any property or asset, or improvements used in connection with that property or liens incurred by us or any of our Subsidiaries to provide funds for any such activities; - liens in favor of the United States of America or any state, territory or possession thereof (or the District of Columbia), or any department, agency, instrumentality or political subdivision of the United States of America or any state, territory or possession thereof (or the District of Columbia), to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of constructing, developing or improving the property subject to such liens; - liens on any property to secure bonds for the construction, installation or financing of pollution control or abatement facilities, or other forms of industrial revenue bond financing, or indebtedness issued or guaranteed by the United States, any state or any department, agency or instrumentality thereof; - liens contemplated by Section 7.07 of the indenture; - liens deemed to exist by reason of negative pledges in respect of indebtedness; and - liens to secure any refinancing, refunding, extension, renewal or replacement of any lien referred to in the bullet points above; provided, however, that any liens permitted by the terms set forth under any of such bullet points shall not extend to or cover any property of ours or of any of our Subsidiaries, as the case may be, other than the property specified in such clauses and improvements thereto or proceeds therefrom. "Property" means any right or interest of ours or any of our Subsidiaries in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible. "Rating Agencies" means (a) S&P and Moody's or (b) if S&P or Moody's or both of them are not making ratings of the notes publicly available, a nationally recognized U.S. rating agency or agencies, as the case may be, selected by us, which will be substituted for S&P or Moody's or both, as the case may be. "Rating Categories" means: (a) with respect to S&P, any of the following categories (any of which may include a "+" or "-"): AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor categories); (b) with respect to Moody's, any of the following categories (any of which may include a "1," "2" or "3"): Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories); and (c) the equivalent of any such categories of S&P or Moody's used by another Rating Agency, if applicable. 31 33 "Rating Decline" means the assignment by any Rating Agency of a rating to the notes that is below Investment Grade. "S&P" means Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors. "Sale-Leaseback Transaction" means any arrangement with any person providing for the leasing by us or any of our Subsidiaries of any Property, which Property has been or is to be sold or transferred by us or such Subsidiary to such person, other than: - any such transaction involving a lease for a term of not more than two years; - any such transaction between us and any of our Subsidiaries or between any of our Subsidiaries; or - any such transaction executed by the time of or within one year after the latest of the acquisition, the completion of construction, development or improvement or the commencement of commercial operation of assets subject to such leasing transaction. "Subsidiary" of any person means: - any person of which more than 50% of the total voting power of the shares of capital stock (without regard to any contingency to vote in the election of directors, managers, trustees, or equivalent persons), at the time of such determination, is owned or controlled, directly or indirectly, by any person or one or more of the Subsidiaries of that person or a combination thereof; - in the case of a partnership, any person of which more than 50% of the partners' capital interests (considering all partners' capital interests as a single class), at the time of such determination, is owned or controlled, directly or indirectly, by any person or one or more of the Subsidiaries of that person; or - any other person in which such person or one or more of the Subsidiaries of that person or a combination thereof has the power to control by contract or otherwise the board of directors, managers, trustees or equivalent governing body or otherwise controls such entity. GUARANTEE Northern Border Intermediate Limited Partnership will unconditionally guarantee the payment of the notes on a senior unsecured basis. Northern Border Intermediate Limited Partnership waives and will not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against us or any of our subsidiaries as a result of Northern Border Intermediate Limited Partnership's payment under its guarantee. Notwithstanding the previous paragraph, Northern Border Intermediate Limited Partnership will be released and discharged from its obligations under the indenture, and its guarantee will no longer be in effect, in the event it is no longer a guarantor of any Funded Debt (as defined below) other than the notes, so long as no default or event of default under the indenture has occurred or is continuing. In such event, Northern Border Intermediate Limited Partnership will give the trustee notice and we will execute and deliver a supplemental indenture. If at any time after the issuance of the notes, including following any release of Northern Border Intermediate Limited Partnership from its guarantee under the indenture, Northern Border Intermediate Limited Partnership incurs, creates, assumes or guarantees any Funded Debt, we will cause Northern Border Intermediate Limited Partnership to guarantee the notes in accordance with the indenture by simultaneously executing and delivering a supplemental indenture. Northern Border Intermediate Limited Partnership's guarantee will be a senior unsecured obligation of Northern Border Intermediate Limited Partnership and will rank equally with its guarantee of our bank credit facilities and existing and future Debt (as defined below) that is not expressly subordinated. Northern Border Intermediate Limited Partnership is a holding company with its ownership of a 70% general partner interest in Northern Border Pipeline as its most significant asset. Northern Border 32 34 Intermediate Limited Partnership's guarantee will be effectively subordinated to all indebtedness of Northern Border Pipeline and our other operating subsidiaries. As used in the foregoing description of Northern Border Intermediate Limited Partnership's guarantee, the terms "Debt" and "Funded Debt" have the following meanings: "Debt" means any obligation incurred, created or assumed by any person for the repayment of money borrowed, any purchase money obligation incurred, created or assumed by such person and any guarantee of any of the foregoing. "Funded Debt" means all Debt maturing one year or more from the date of the incurrence, creation, assumption or guarantee thereof, all Debt directly or indirectly renewable or extendable, at the option of the debtor, by its terms or by the terms of any instrument or agreement relating thereto, to a date one year or more from the date of the incurrence, creation, assumption or guarantee thereof, and all Debt under a revolving credit or similar agreement obligating the lender or lenders to extend credit over a period of one year or more. NON-RECOURSE; NO PERSONAL LIABILITY None of our Partnership Policy Committee members, Audit Committee members, or our general partners or our general partners' directors, officers, employees, incorporators or stockholders, if any, shall have any liability for any of our obligations under the notes, Northern Border Intermediate Limited Partnership's guarantee, the indenture or any supplemental indenture, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each holder of notes by accepting a note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the notes. Such waiver may not be effective to waive liabilities under the federal securities laws, and it is the view of the SEC that such waivers of liabilities under federal securities laws are against public policy. DISCHARGE AND DEFEASANCE We will be discharged from our obligations on the notes at any time if we deposit with the trustee sufficient cash or non-callable government securities to pay the principal, interest, any premium, and any other sums due to the stated maturity date or a redemption date of the notes. If this happens, the holders of the notes will not be entitled to the benefits of the indenture except for registration of, transfer and exchange of notes and replacement of lost, stolen or mutilated notes. In addition, we will be released from our obligations to comply with the covenant in the indenture to provide reports and from restrictions in the indenture on our ability to merge, consolidate or sell all or substantially all of our assets, and the limitations in the indenture on liens and sale-leaseback transactions if we irrevocably deposit with the trustee, in trust, cash or government securities to pay the principal, interest, premium, if any, and any other sums due to the stated maturity date or applicable redemption date of the notes and we comply with certain other conditions. If this happens, our failure to comply with the covenants described in the preceding sentence will not constitute a default or event of default in respect of the notes. Under federal income tax law, a discharge described in the preceding paragraph may be treated as an exchange of the related debt securities. Each holder might be required to recognize gain or loss equal to the difference between the holder's cost or other tax basis for the notes and the value of the holder's interest in the trust. Holders might be required to include as income a different amount than would be includable without the discharge. Prospective investors should seek tax advice to determine their particular consequences of a discharge, including the applicability and effect of tax laws other than the federal income tax law. 33 35 In addition, we may terminate our obligations under the notes, other than our obligation to pay the principal of, premium, if any, and accrued and unpaid interest on such notes and certain other obligations, provided that we either: (1) deliver all outstanding notes (other than notes for which payment amounts have been deposited with the trustee as described in the second preceding paragraph) to the trustee for cancellation; or (2) all such notes not so delivered for cancellation have either become due and payable or will become due and payable at their stated maturity within one year or are called for redemption within one year and, in the case of this clause (2), we have deposited with the trustee in trust an amount of money sufficient to pay and discharge the entire indebtedness of such notes, including interest to the stated maturity or applicable redemption date. TRANSFER AND EXCHANGE The notes will be issued in registered form and may be transferred or exchanged only in accordance with the indenture. The registrar and the trustee may require a holder, among other things, to furnish appropriate endorsements and transfer documents and we may require a holder to pay any taxes and fees required by law or permitted by the indenture. We are not required to transfer or exchange any note selected for redemption. Also, we are not required to transfer or exchange any note for a period of 15 days before a selection of notes to be redeemed. The registered holder of a note will be treated as the owner of it for all purposes. CONCERNING THE TRUSTEE Bank One Trust Company, N.A. serves as trustee under the indenture. We have appointed the trustee to serve as the paying agent and registrar for the notes. The trustee will be permitted to engage in other transactions; however, if it acquires any conflicting interest it must eliminate such conflict or resign. We currently, and certain of our affiliates may, have banking relationships with the trustee. The holders of a majority in principal amount of the then outstanding notes will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the trustee, subject to certain exceptions. The indenture provides that in case an event of default shall occur (which shall not be cured), the trustee will be required, in the exercise of its power, to use the degree of care of a prudent man in the conduct of his own affairs. Subject to such provisions, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request of any holder of notes, unless such holder shall have offered to the trustee security and indemnity satisfactory to it against any loss, liability or expense. BOOK-ENTRY, DELIVERY AND FORM Generally, the notes will be issued in the form of global notes registered in the name of DTC or its nominee. Outstanding notes issued in certificated form may be exchanged in the exchange offer for new notes in certificated form. Payment of the principal of and interest on certificated notes is subject to the indenture and will be made at the corporate trust office of the trustee or such other office or agency as may be designated by it for such purpose in New York City. Payment of interest on certificated notes will be made to the person in whose name such note is registered at the close of business on the applicable record date. All other terms of the certificated notes are governed by the indenture. Except as described below, the global notes may be transferred, in whole and not in part, only to another nominee of DTC or to a successor of DTC or its nominee. Beneficial interests in the global notes 34 36 may not be exchanged for notes in certificated form except in the limited circumstances described below under "-- Depositary Procedures -- Exchange of Book-Entry Notes for Certificated Notes." Initially, the trustee will act as paying agent and registrar for the notes. DEPOSITARY PROCEDURES The depository will act as securities depositary for the notes in book-entry form. The following information about the depositary is based on information furnished by the depositary. DTC has advised us that DTC is a limited-purpose trust company created to hold securities for its participating organizations and to facilitate the clearance and settlement of transactions in those securities between participants through electronic book-entry changes in accounts of participants, eliminating the need for physical movement of securities certificates. The participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. Access to DTC's system is also available to other entities such as banks, securities brokers and dealers, and trust companies that clear through or maintain a custodial relationship with a participant, either directly or indirectly. Persons who are not participants may beneficially own securities held by or on behalf of DTC only through the participants or indirect participants. The ownership interest and transfer of ownership interest of each actual purchaser of each security held by or on behalf of DTC are recorded on the records of the participants and indirect participants. DTC has also advised us that pursuant to procedures established by it, (a) upon deposit of the global notes, DTC will credit the accounts of the designated participants with portions of the principal amount of global notes and (b) ownership of such interests in the global notes will be shown on, and the transfer of ownership thereof will be effected only through, records maintained by DTC (with respect to participants) or by participants and the indirect participants (with respect to other owners of beneficial interests in the global notes). The laws of some states require that certain persons take physical delivery in definitive form of securities that they own. Consequently, the ability to transfer beneficial interest in a global note to such persons may be limited to that extent. Because DTC can act only on behalf of participants, which in turn act on behalf of indirect participants and certain banks, the ability of a person having a beneficial interest in a global note to pledge such interest to persons or entities that do not participate in the DTC system, or otherwise take actions in respect of such interests, may be affected by the lack of physical certificates evidencing such interest. For certain other restrictions on the transferability of the notes, see "-- Exchange of Book-Entry Notes for Certificated Notes." EXCEPT AS DESCRIBED BELOW, OWNERS OF INTERESTS IN THE GLOBAL NOTES WILL NOT HAVE NOTES REGISTERED IN THEIR NAMES, WILL NOT RECEIVE PHYSICAL DELIVERY OF NOTES IN CERTIFICATED FORM AND WILL NOT BE CONSIDERED THE REGISTERED OWNERS OR HOLDERS THEREOF UNDER THE INDENTURE FOR ANY PURPOSE. Under the terms of the indenture, the trustee and we will treat the persons in whose names the notes, including the global notes, are registered as the owners thereof for the purpose of receiving such payments and for any and all other purposes whatsoever. Payments in respect of the principal and premium, if any, and interest on a global note registered in the name of DTC or its nominee will be payable by the trustee to DTC or its nominee in its capacity as the registered holder under the indenture. Consequently, none of us, the trustee nor any of our agents or the trustee's agents has or will have any responsibility or liability for (a) any aspect of DTC's records or any participant's or indirect participant's records relating to or payments made on account of beneficial ownership interests in the global notes, or for maintaining, supervising or reviewing any of DTC's records or any participant's or indirect participant's records relating to the beneficial ownership interests in the global notes or (b) any other matter relating to the actions and practices of DTC or any of its participants or indirect participants. DTC has advised us that its current practices for payments of principal, interest, and the like with respect to securities such as the notes is to credit the accounts of the relevant participants with the payment on the payment date, in amounts proportionate to their respective holdings in principal amount of 35 37 beneficial interests in the relevant security such as the global notes as shown on the records of DTC. Payments by participants and the indirect participants to the beneficial owners of notes will be governed by standing instructions and customary practices and will not be the responsibility of DTC, the trustee or us. Neither the trustee nor we will be liable for any delay by DTC or its participants in identifying the beneficial owners of the notes, and the trustee and we may conclusively rely on and will be protected in relying on instructions from DTC or its nominee as the registered owner of the notes for all purposes. The global notes will trade in DTC's Same-Day Funds Settlement System and, therefore, transfers between participants in DTC will be effected in accordance with DTC's procedures, and will be settled in immediately available funds. Transfers between indirect participants who hold an interest through a participant will be effected in accordance with the procedures of such participant but generally will settle in immediately available funds. DTC has advised us that it will take any action permitted to be taken by a holder of notes only at the direction of one or more participants to whose account interests in the global notes are credited and only in respect of such portion of the aggregate principal amount of the notes to which such participant or participants has or have given direction. However, if there is an Event of Default under the notes, DTC reserves the right to exchange global notes (without the direction of one or more of its participants) for legended notes in certificated form, and to distribute such certificated forms of notes to its participants. Although DTC has agreed to the foregoing procedures to facilitate transfers of interests in the notes among participants, it is under no obligation to perform or to continue to perform such procedures, and such procedures may be discontinued at any time. Neither the trustee nor we shall have any responsibility for the performance by DTC or its participants and indirect participants of their respective obligations under the rules and procedures governing any of their operations. Exchange of Book-Entry Notes for Certificated Notes. A global note is exchangeable for definitive notes in registered certificated form if (1) DTC (A) notifies us that it is unwilling or unable to continue as depository for the global note and we thereupon fail to appoint a successor depository or (B) has ceased to be a clearing agency registered under the Exchange Act, (2) we, at our option, notify the trustee in writing that we elect to cause issuance of the notes in certificated form or (3) there shall have occurred and be continuing a Default or Event of Default. In addition, beneficial interests in a global note held by any participant or indirect participant may be exchanged for certificated notes upon request to DTC by such participant (for itself and on behalf of an indirect participant) but only upon at least 20 days' prior written notice given to the trustee by or on behalf of DTC in accordance with customary procedures. In all cases, certificated notes delivered in exchange for any global note or beneficial interest therein will be registered in names, and issued in any approved denominations, requested by or on behalf of DTC (in accordance with its customary procedures) unless we determine otherwise in compliance with applicable law. Neither the trustee nor we will be liable for any delay by the holder of the global note or DTC in identifying the beneficial owners of notes, and the trustee and we may conclusively rely on, and will be protected in relying on, instructions from the holder of the global note or DTC for all purposes. Certificated Notes. Subject to certain conditions, any person having a beneficial interest in the global note may, upon request to the trustee, exchange such beneficial interest for notes in the form of certificated notes. Upon any such issuance, the trustee is required to register such certificated notes in the name of, and cause the same to be delivered to, such person or persons (or the nominee of any thereof). In addition, if (a) we notify the trustee in writing that DTC is no longer willing or able to act as a depository and we are unable to locate a qualified successor within 90 days or (b) we, at our option, notify the trustee in writing that we elect to cause the issuance of notes in the form of certificated notes under the indenture or (c) DTC will not continue to hold the book-entry interests related to the global notes or is no longer a clearing agency registered under the Exchange Act and we do not replace DTC within 120 days, then, upon surrender by the global note holder of its global note, notes in such form will be issued to each person that the global note holder and DTC identify as being the beneficial owner of the related notes. 36 38 Neither the trustee nor we will be liable for any delay by the global note holder or DTC in identifying the beneficial owners of notes and the trustee and we may conclusively rely on, and will be protected in relying on, instructions from the global note holder or DTC for all purposes. Same-day Settlement and Payment. The indenture will require that payments in respect of the notes represented by the global note (including principal, premium, if any, and interest) be made by wire transfer of immediately available funds to the accounts specified by the global note holder. With respect to certificated notes, we will make all payments of principal, premium, if any, and interest by wire transfer of immediately available funds to the accounts specified by the holders thereof or, if no such account is specified, by mailing a check to each such holder's registered address. We expect that secondary trading in the certificated notes will also be settled in immediately available funds. MEETINGS The indenture contains provisions describing how meetings of the holders of notes may be convened. A meeting may be called at any time by the trustee, and also, upon request, by us or the holders of at least 10% in principal amount of the outstanding notes. A notice of the meeting must always be given in the manner described under "-- Notices" below. Generally speaking, any resolution presented at a meeting of the holders of a series of notes may be adopted by the affirmative vote of the holders of a majority in principal amount of the outstanding notes, unless the indenture allows the action to be voted upon to be taken with the approval of the holders of a different specific percentage of principal amount of the notes. In that case, the holders of outstanding notes of at least the specified percentage must vote in favor of the action. Any resolution passed or decision taken at any meeting of holders of notes in accordance with the indenture will be binding on all holders of notes. The quorum at any meeting called to adopt a resolution, and at any reconvened meeting, will be an aggregate principal amount sufficient to take action upon the matter for which the meeting was called. GOVERNING LAW The indenture and the notes will be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of laws principles. NOTICES Notices to holders of notes will be given by mail to the addresses of such holders as they appear in the security register. 37 39 UNITED STATES FEDERAL TAX CONSIDERATIONS The following is a discussion of the material U.S. federal income tax consequences of the ownership and disposition of the notes and represents the opinion of our counsel, Vinson & Elkins L.L.P., as to these matters. Unless otherwise stated, this discussion is limited to the tax consequences to those persons who purchase the notes from us and who hold the notes as capital assets under Section 1221 of the Internal Revenue Code of 1986, as amended. The discussion does not address specific tax consequences that may be relevant to particular persons including, for example, financial institutions, broker-dealers, insurance companies, tax-exempt organizations, and persons in special situations, such as those who hold notes as part of a straddle, hedge, conversion transaction, or other integrated investment. In addition, this discussion does not address U.S. federal alternative minimum tax consequences or any aspect of state, local or foreign taxation. This discussion is based upon current U.S. federal income tax laws, regulations, rulings and judicial decisions, all of which are subject to change, possibly with retroactive effect. In our counsel's opinion, the notes qualify as indebtedness for federal income tax purposes, and the following discussion assumes that this treatment is correct. For purposes of this discussion, you are a "U.S. Holder" if you are a beneficial owner of a note and are a U.S. citizen or resident, a corporation, partnership or other entity created or organized in or under the laws of the U.S. or of any political subdivision thereof, an estate, the income of which is subject to U.S. federal income taxation regardless of its source, or a trust if a U.S. court is able to exercise primary supervision over its administration and one or more U.S. persons have the authority to control all of its substantial decisions or specific electing trusts in existence as of August 28, 1996. You are a "Non-U.S. Holder" if you are a holder of a note who is not a U.S. Holder. PARTICIPANTS IN THE EXCHANGE OFFER ARE URGED TO CONSULT THEIR OWN TAX ADVISORS CONCERNING THE SPECIFIC U.S. FEDERAL INCOME AND ESTATE TAX CONSEQUENCES TO THEM OF OWNING AND DISPOSING OF THE NOTES, AS WELL AS THE APPLICATION OF STATE, LOCAL AND FOREIGN INCOME AND OTHER TAX LAWS. TAX CONSEQUENCES TO U.S. HOLDERS Taxation of Interest. If you are a U.S. Holder, interest on your notes generally will be taxable as ordinary interest income at the time payments are accrued or are received in accordance with your regular method of accounting for federal income tax purposes. The notes are not expected to be issued with "original issue discount" for U.S. federal income tax purposes. Sale, Exchange or Retirement of the Notes. Upon the sale, exchange or retirement of the notes, you will recognize gain or loss equal to the difference, if any, between the amount realized upon the sale, exchange or retirement (less any portion allocable to accrued and unpaid interest) and your adjusted tax basis in the notes. Your adjusted tax basis in the notes generally will be your cost for the notes, less any principal payments you receive. The gain or loss you recognize on the sale, exchange or retirement of the notes will be capital gain or loss. The gain or loss will be long-term capital gain or loss if you have held the notes for more than twelve months. Long-term capital gain is subject to a maximum federal tax rate of 20% for U.S. Holders other than corporations. The deductibility of capital losses by U.S. Holders is subject to limitation. To the extent that the amount realized represents accrued but unpaid interest, that amount must be taken into account as interest income, if it was not previously included in your income. Please read "-- Taxation of Interest" above. Exchange Offer. The exchange offer should not produce, for U.S. federal income tax purposes, recognizable gain or loss to either us or a U.S. Holder of a new note because the new notes will be identical in all material expects to the outstanding notes, except that the new notes will be registered and, therefore, not subject to transfer restrictions. A U.S. Holder will have an initial adjusted tax basis and holding period in the new note equal to its adjusted tax basis and holding period in the outstanding note. 38 40 TAX CONSEQUENCES TO NON-U.S. HOLDERS Taxation of Interest. If you are a Non-U.S. Holder, you generally will not be subject to U.S. federal income or withholding tax on interest paid on the notes so long as that interest is not effectively connected with your conduct of a trade or business within the U.S., and you: - do not actually or constructively own 10% or more of the total combined voting power of our capital or profits interests; - are not a "controlled foreign corporation" with respect to which we are a "related person" within the meaning of the Code; and - are not a bank receiving the interest pursuant to a loan agreement in the ordinary course of your trade or business. In addition, for the exemption from withholding taxes to apply, a Non-U.S. Holder must provide us with a properly completed and executed Form W-8 BEN, or other applicable form, as provided for in the Treasury Regulations, certifying that the beneficial owner of the note is a foreign person. If these conditions are not satisfied, then interest paid on the notes will be subject to U.S. federal income and withholding tax at a rate of 30% unless that rate is reduced or eliminated pursuant to an applicable tax treaty. Sale, Exchange or Retirement of the Notes. Any capital gain you recognize on the sale, exchange, retirement or other taxable disposition of a note will be exempt from U.S. federal income and withholding tax, provided that: - the gain is not effectively connected with your conduct of a trade or business within the U.S.; and - if you are an individual, you are not present in the U.S. for 183 days or more during the taxable year. Effectively Connected Income. If the interest, gain or other income you recognize on a note is effectively connected with your conduct of a trade or business within the U.S., you will be exempt from the withholding tax previously discussed if you provide us with a properly completed and executed Form W-8 ECI, but generally will be subject to U.S. federal income tax on the interest, gain or other income at regular federal income tax rates. In addition to regular U.S. federal income tax, if you are a corporation, you may be subject to a branch profits tax equal to 30% of your effectively connected earnings and profits, as adjusted for certain items, unless you qualify for a lower rate under an applicable tax treaty. Federal Estate Taxes. A note held by an individual who at the time of death is not a citizen or resident of the U.S. will not be subject to U.S. federal estate tax as a result of such individual's death, provided that the individual does not actually or constructively own 10% or more of our capital or profits interests and that the interest accrued on the notes was not effectively connected with that holder's conduct of a trade or business within the U.S. INFORMATION REPORTING AND BACKUP WITHHOLDING We will, where required, report to you and the Internal Revenue Service the amount of any interest paid on the notes in each calendar year and the amounts of tax withheld, if any, with respect to those payments. A noncorporate U.S. Holder may be subject to information reporting and to backup withholding at a rate of 31% with respect to payments of interest made on a note, or proceeds of the disposition of a note before maturity, unless the U.S. Holder provides a correct taxpayer identification number or proof of an applicable exemption and otherwise complies with applicable requirements of the information reporting and backup withholding rules. In the case of payments of interest to Non-U.S. Holders, current Treasury Regulations provide that the 31% backup withholding tax and certain information reporting requirements will not apply to payments with respect to which either the requisite certification, as described above, has been received or an 39 41 exemption has otherwise been established, provided that neither we nor our payment agent has actual knowledge that the holder is a U.S. person or that the conditions of any other exemption are not in fact satisfied. Under current Treasury Regulations, information reporting and backup withholding requirements will apply, however, to the gross proceeds paid to a Non-U.S. Holder on the disposition of the notes by or through a U.S. office of a U.S. or foreign broker, unless the Non-U.S. Holder otherwise establishes an exemption. Information reporting requirements, but not backup withholding, will also apply to payment of the proceeds of a disposition of the notes by or through a foreign office of a U.S. broker or foreign brokers with certain types of relationships to the U.S. unless the broker has documentary evidence in its file that the holder of the notes is not a U.S. person and the broker has no actual knowledge to the contrary, or the holder establishes an exemption. Neither information reporting nor backup withholding generally will apply to payment of the proceeds of a disposition of the notes by or through a foreign office of a foreign broker not subject to the preceding sentence. Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be refunded or credited against the holder's U.S. federal income tax liability, provided that the required information is furnished to the Internal Revenue Service. New Treasury Regulations effective January 1, 2001, have been issued with respect to the certification requirements described above. You should consult your own tax advisor as to how these new regulations may affect you. PLAN OF DISTRIBUTION Based on interpretations by the staff of the SEC in no-action letters issued to third parties, we believe that you may transfer new notes issued under the exchange offer in exchange for the outstanding notes if: - you acquire the new notes in the ordinary course of your business; and - you are not engaged in, and do not intend to engage in, and have no arrangement or understanding with any person to participate in, a distribution of such new notes. Broker-dealers receiving new notes in the exchange offer will be subject to a prospectus delivery requirement with respect to resales of the new notes. We believe that you may not transfer new notes issued under the exchange offer in exchange for the outstanding notes if you are: - our "affiliates" within the meaning of Rule 405 under the Securities Act; - a broker-dealer that acquired outstanding notes directly from us; or - a broker-dealer that acquired outstanding notes as a result of market-making or other trading activities without compliance with the registration and prospectus delivery provisions of the Securities Act. To date, the staff of the SEC has taken the position that participating broker-dealers may fulfill their prospectus delivery requirements with respect to transactions involving an exchange of securities such as this exchange offer, other than a resale of an unsold allotment from the original sale of the outstanding notes, with the prospectus contained in the exchange offer registration statement. In the registration rights agreements, we have agreed to permit participating broker-dealers to use this prospectus in connection with the resale of new notes. If you wish to exchange your outstanding notes for new notes in the exchange offer, you will be required to make representations to us as described in "The Exchange Offer -- Exchange Terms" and "-- Procedures for Tendering Outstanding Notes -- Other Matters" in this prospectus and in the letter of transmittal. In addition, if you are a broker-dealer who receives new notes for your own account in 40 42 exchange for outstanding notes that were acquired by you as a result of market-making activities or other trading activities, you will be required to acknowledge that you will deliver a prospectus in connection with any resale by you of such new notes. See "The Exchange Offer-Resale of New Notes." We will not receive any proceeds from any sale of new notes by broker-dealers. Broker-dealers who receive new notes for their own account in the exchange offer may sell them from time to time in one or more transactions in the over-the-counter market: - in negotiated transactions; - through the writing of options on the new notes or a combination of such methods of resale; - at market prices prevailing at the time of resale; and - at prices related to such prevailing market prices or negotiated prices. Any resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any broker-dealer or the purchasers of any new notes. Any broker-dealer that resells new notes it received for its own account in the exchange offer and any broker or dealer that participates in a distribution of such new notes may be deemed to be an "underwriter" within the meaning of the Securities Act. Any profit on any resale of new notes and any commissions or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. We have agreed to pay all expenses incidental to the exchange offer other than commissions and concessions of any brokers or dealers. We will indemnify holders of the outstanding notes, including any broker-dealers, against certain liabilities, including liabilities under the Securities Act, as provided in the registration rights agreements. LEGAL MATTERS Vinson & Elkins L.L.P. will pass upon certain legal matters with respect to the notes. INDEPENDENT PUBLIC ACCOUNTANTS The consolidated financial statements of Northern Border Partners, L.P. as of December 31, 1999 and 1998, and for each of the three years in the period ended December 31, 1999, incorporated by reference in this prospectus and elsewhere in the registration statement, have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their report with respect thereto, and are incorporated by reference herein in reliance upon the authority of said firm as experts in accounting and auditing in giving said report. WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and special reports, proxy statements and other information with the SEC under the Exchange Act. The registration statement of which this prospectus forms a part and these reports, proxy statements and other information can be inspected and copied at the public reference room maintained by the SEC at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the SEC's regional offices at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and at Seven World Trade Center, Suite 1300, New York, New York 10048. Copies of these materials may also be obtained from the SEC at prescribed rates by writing to the public reference room maintained by the SEC at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. You may obtain information on the operation of the public reference room by calling the SEC at 1-800-SEC-0330. 41 43 We have filed with the SEC a registration statement on Form S-4 under the Securities Act with respect to this offering. This prospectus, which forms a part of the registration statement, does not contain all the information included in the registration statement and the attached exhibits. The SEC maintains a World Wide Web site on the Internet at http://www.sec.gov that contains reports, proxy and information statements and other information regarding us. The reports, proxy and information statements and other information about us can be downloaded from the SEC's website and can also be inspected and copied at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005. INCORPORATION OF DOCUMENTS BY REFERENCE The SEC allows us to "incorporate by reference" into this prospectus the information we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and later information that we file with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings made with the SEC under section 13(a), 13(c), 14 or 15(d) of the Exchange Act until the exchange offer is completed: - our annual report on Form 10-K for the year ended December 31, 1999, and - our quarterly reports on Form 10-Q for the quarters ended March 31, 2000 and June 30, 2000. You may request a copy of these filings, at no cost, by writing or calling us at the following address: Investor Relations Northern Border Partners, L.P. 1111 South 103rd Street Omaha, Nebraska 68124 Telephone: (877) 208-7318 You should rely only on the information incorporated by reference or provided in this prospectus. We have not authorized anyone else to provide you with any information. You should not assume that the information in this document is current as of any date other than the date on the front page of this prospectus. 42 44 PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Partnership Agreement contains the following provisions relating to indemnification of officers, general partners and Partnership Policy Committee members: 6.8 Indemnification. (a) To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, each General Partner, the members of the Partnership Policy Committee, any Departing Partner, any Person who is or was an officer or director of the Partnership, a General Partner or any Departing Partner and all other Indemnitees shall be indemnified and held harmless by the Partnership from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including, without limitation, legal fees and expenses), judgments, fines, penalties, interest, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as (i) a General Partner, a member of the Partnership Policy Committee, a Departing Partner or any of their Affiliates, (ii) an officer, director, employee, partner, agent or trustee of the Partnership, a General Partner, any Departing Partner or any of their Affiliates or (iii) a Person serving at the request of the Partnership in another entity in a similar capacity, provided, that in each case the Indemnitee acted in good faith and in a manner which such Indemnitee believed to be in, or not opposed to, the best interests of the Partnership and, with respect to any criminal proceeding, had no reasonable cause to believe its conduct was unlawful; provided, further, no indemnification pursuant to this Section 6.8 shall be available to the General Partners with respect to their obligations incurred pursuant to the Indemnity Agreement, the Underwriting Agreement or the Conveyance Agreement (other than obligations incurred by the General Partners on behalf of the Partnership or the Intermediate Partnership). The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that the Indemnitee acted in a manner contrary to that specified above. Any indemnification pursuant to this Section 6.8 shall be made only out of the assets of the Partnership, it being agreed that the General Partners shall not be personally liable for such indemnification and shall have no obligation to us to contribute or loan any monies or property to the Partnership to enable it to effectuate such indemnification. (b) To the fullest extent permitted by law, expenses (including, without limitation, legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 6.8(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Partnership prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Partnership of an undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section 6.8. (c) The indemnification provided by this Section 6.8 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the holders of Outstanding Common Units, as a matter of law or otherwise, both as to actions in the Indemnitee's capacity as (i) a General Partner, a member of the Partnership Policy Committee, a Departing Partner or an Affiliate thereof, (ii) an officer, director, employee, partner, agent or trustee of the Partnership, a General Partner, any Departing Partner or an Affiliate thereof or (iii) a Person serving at the request of the Partnership in another entity in a similar capacity, and as to actions in any other capacity (including, without limitation, any capacity under the Underwriting Agreement), and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee. II-1 45 (d) The Partnership may purchase and maintain (or reimburse the General Partners or their Affiliates for the cost of) insurance, on behalf of the General Partners, the members of the Partnership Policy Committee and such other Persons as the Partnership Policy Committee shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Partnership's activities, regardless of whether the Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement. (e) For purposes of this Section 6.8, the Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Partnership also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute "fines" within the meaning of Section 6.8(a); and action taken or omitted by it with respect to an employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Partnership. (f) In no event may an Indemnitee subject the Limited Partners to personal liability by reason of the indemnification provisions set forth in this Agreement. (g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 6.8 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (h) The provisions of this Section 6.8 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons. (i) No amendment, modification or repeal of this Section 6.8 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Partnership, nor the obligation of the Partnership to indemnify any such Indemnitee under and in accordance with the provisions of this Section 6.8 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted. ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES (a) Exhibits The following instruments and documents are included as Exhibits to this Registration Statement.
EXHIBIT NUMBER EXHIBIT ------- ------- *3.1 -- Form of Amended and Restated Agreement of Limited Partnership of Northern Border Partners, L.P. (Exhibit 3.1 No. 2 to the Partnership's Form S-1 Registration Statement, Registration No. 33-66158 ("Form S-1")). *3.2 -- Form of Amended and Restated Agreement of Limited Partnership For Northern Border Intermediate Limited Partnership (Exhibit 10.1 to Form S-1). *4.1 -- Indenture, dated as of June 2, 2000, between the registrants and Bank One Trust Company, N.A. (Exhibit 4.1 to the Partnership's Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2000 ("June 2000 10-Q")). 4.2 -- First Supplemental Indenture, dated as of September 14, 2000, between the registrants and Bank One Trust Company, N.A.
II-2 46
EXHIBIT NUMBER EXHIBIT ------- ------- *4.3 -- Registration Rights Agreement, dated June 2, 2000, by and among the registrants and Banc of America Securities LLC, Banc One Capital Markets, Inc. and SunTrust Equitable Securities, as Initial Purchasers (Exhibit 4.2 to June 2000 10-Q). 4.4 -- Registration Rights Agreement, dated September 14, 2000, by and among the registrants and Banc of America Securities LLC, Banc One Capital Markets, Inc. and SunTrust Equitable Securities, as Initial Purchasers. 5.1 -- Opinion of Vinson & Elkins L.L.P., as to the validity of the new notes. 8.1 -- Opinion of Vinson & Elkins L.L.P., as to certain tax matters (included in Exhibit 5.1). *10.1 -- Northern Border Pipeline Company General Partnership Agreement between Northern Plains Natural Gas Company, Northwest Border Pipeline Company, Pan Border Gas Company, TransCanada Border Pipeline Ltd. and TransCan Northern Ltd., effective March 9, 1978, as amended (Exhibit 10.2 to Form S-1). *10.2 -- Operating Agreement between Northern Border Pipeline Company and Northern Plains Natural Gas Company, dated February 28, 1980 (Exhibit 10.3 to Form S-1). *10.3 -- Administrative Services Agreement between NBP Services Corporation, Northern Border Partners, L.P. and Northern Border Intermediate Limited Partnership (Exhibit 10.4 to Form S-1). *10.4 -- Note Purchase Agreement between Northern Border Pipeline Company and the parties listed therein, dated July 15, 1992 (Exhibit 10.6 to Form S-1). *10.4.1 -- Supplemental Agreement to the Note Purchase Agreement dated as of June 1, 1995 (Exhibit 10.6.1 to the Partnership's Annual Report on Form 10-K for the year ended December 31, 1995 ("1995 10-K")). *10.5 -- Guaranty made by Panhandle Eastern Pipeline Company, dated October 31, 1992 (Exhibit 10.9 to Form S-1). *10.6 -- Northern Border Pipeline Company U.S. Shippers Service Agreement between Northern Border Pipeline Company and Enron Gas Marketing, Inc., dated June 22, 1990 (Exhibit 10.10 to Form S-1). *10.6.1 -- Amended Exhibit A to Northern Border Pipeline Company U.S. Shippers Service Agreement between Northern Border Pipeline Company and Enron Gas Marketing, Inc. (Exhibit 10.10.1 to the Partnership's Annual Report on Form 10-K for the year ended December 31, 1993 ("1993 10-K")). *10.6.2 -- Amended Exhibit A to Northern Border Pipeline U.S. Shippers Service Agreement between Northern Border Pipeline Company and Enron Gas Marketing, Inc., effective November 1, 1994 (Exhibit 10.10.2 to the Partnership's Annual Report on Form 10-K for the year ended December 31, 1994). *10.6.3 -- Amended Exhibit A's to Northern Border Pipeline Company U.S. Shipper Service Agreement effective, August 1, 1995 and November 1, 1995 (Exhibit 10.10.3 to 1995 10-K). *10.6.4 -- Amended Exhibit A to Northern Border Pipeline Company U.S. Shipper Service Agreement effective April 1, 1998 (Exhibit 10.10.4 to the Partnership's Annual Report on Form 10-K for the year ended December 31, 1997 ("1997 10-K")). *10.7 -- Guaranty made by Northern Natural Gas Company, dated October 7, 1993 (Exhibit 10.11.1 to 1993 10-K). *10.8 -- Guaranty made by Northern Natural Gas Company, dated October 7, 1993 (Exhibit 10.11.2 to 1993 10-K).
II-3 47
EXHIBIT NUMBER EXHIBIT ------- ------- *10.9 -- Northern Border Pipeline Company U.S. Shippers Service Agreement between Northern Border Pipeline Company and Western Gas Marketing Limited, as agent for TransCanada PipeLines Limited, dated December 15, 1980 (Exhibit 10.13 to Form S-1). *10.9.1 -- Amendment to Northern Border Pipeline Company Service Agreement extending the term effective November 1, 1995 (Exhibit 10.13.1 to 1995 10-K). *10.10 -- Form of Seventh Supplement Amending Northern Border Pipeline Company General Partnership Agreement (Exhibit 10.15 to Form S-1). *10.11 -- Northern Border Pipeline Company U.S. Shippers Service Agreement between Northern Border Pipeline Company and Transcontinental Gas Pipe Line Corporation, dated July 14, 1983, with Amended Exhibit A effective February 11, 1994 (Exhibit 10.17 to 1995 10-K). *10.12 -- Form of Credit Agreement among Northern Border Pipeline Company, The First National Bank of Chicago, as Administrative Agent, The First National Bank of Chicago, Royal Bank of Canada, and Bank of America National Trust and Savings Association, as Syndication Agents, First Chicago Capital Markets, Inc., Royal Bank of Canada, and BancAmerica Securities, Inc, as Joint Arrangers and Lenders (as defined therein) dated as of June 16, 1997 (Exhibit 10(c) to Amendment No. 1 to Form S-3, Registration Statement No. 333-40601 ("Form S-3")). *10.13 -- Northern Border Pipeline Company U.S. Shippers Service Agreement between Northern Border Pipeline Company and Enron Capital & Trade Resources Corp. dated October 15, 1997 (Exhibit 10.21 to 1997 10-K). *10.14 -- Northern Border Pipeline Company U.S. Shippers Service Agreement between Northern Border Pipeline Company and Enron Capital & Trade Resources Corp. dated October 15, 1997 (Exhibit 10.22 to 1997 10-K). *10.15 -- Northern Border Pipeline Company U.S. Shippers Service Agreement between Northern Border Pipeline Company and Enron Capital & Trade Resources Corp. dated August 5, 1997 with Amendment dated September 25, 1997 (Exhibit 10.25 to 1997 10-K). *10.16 -- Northern Border Pipeline Company U.S. Shippers Service Agreement between Northern Border Pipeline Company and Enron Capital & Trade Resources Corp. dated August 5, 1997 (Exhibit 10.26 to 1997 10-K). *10.17 -- Northern Border Pipeline Company U.S. Shippers Service Agreement between Northern Border Pipeline Company and TransCanada Gas Services Inc., as agent for TransCanada PipeLines Limited dated August 5, 1997 (Exhibit 10.27 to 1997 10-K). *10.18 -- Northern Border Pipeline Company U.S. Shippers Service Agreement between Northern Border Pipeline Company and TransCanada Gas Services Inc., as agent for TransCanada PipeLines Limited dated August 5, 1997 (Exhibit 10.28 to 1997 10-K). *10.19 -- Indenture, dated as of August 17, 1999, between Northern Border Pipeline Company and Bank One Trust Company, NA, successor to The First National Bank of Chicago, as trustee (Exhibit No. 4.1 to Northern Border Pipeline Company's Form S-4 Registration Statement, Registration No. 333-88577 ("Form S-4")). *10.20 -- Project Management Agreement by and between Northern Plains Natural Gas Company and Enron Engineering & Construction Company, dated March 1, 1996 (Exhibit No. 10.39 to Form S-4).
II-4 48
EXHIBIT NUMBER EXHIBIT ------- ------- *10.21 -- Eighth Supplement Amending Northern Border Pipeline Company General Partnership Agreement (Exhibit 10.15 of Form S-4). *10.22 -- 364-Day Credit Agreement dated as of June 28, 2000 between Northern Border Partners, L.P., 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) (Exhibit 10.1 to June 2000 10-Q). 10.23 -- First Amendment to 364-Day Credit Agreement effective as of June 28, 2000 among Northern Border Partners, L.P., Northern Border Intermediate Limited Partnership, Bank of America, N.A., Administrative Agent, and the Lenders (as defined therein). *10.24 -- Revolving Credit Agreement dated as of June 28, 2000 between Northern Border Partners, L.P., 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) (Exhibit 10.2 to June 2000 10-Q). 10.25 -- First Amendment to Revolving Credit Agreement effective as of June 28, 2000 among Northern Border Partners, L.P., Northern Border Intermediate Limited Partnership, Bank of America, N.A., Administrative Agent, and the Lenders (as defined therein). 12.1 -- Statement re computation of ratios. 21 -- The subsidiaries of Northern Border Partners, L.P. are Northern Border Intermediate Limited Partnership; Northern Border Pipeline Company; NBP Energy Pipelines, L.L.C.; Black Mesa Holdings, Inc.; Black Mesa Pipeline, Inc.; Black Mesa Pipeline Operations L.L.C.; Black Mesa Technologies, Inc. and Black Mesa Technologies Services L.L.C. 23.1 -- Consent of Arthur Andersen LLP. 24.1 -- Powers of Attorney (included on pages II-7 and II-8 of the Registration Statement). 25.1 -- Statement of Eligibility of Bank One Trust Company, N.A., as trustee, on Form T-1 with respect to the issuance of 8 7/8% Senior Notes due 2010, Series A, by Northern Border Partners, L.P. pursuant to the Indenture between the registrants and Bank One Trust Company, N.A., as trustee. 25.2 -- Statement of Eligibility of Bank One Trust Company, N.A., as trustee, on Form T-1 with respect to the guarantee of 8 7/8% Senior Notes due 2010, Series A, by Northern Border Intermediate Limited Partnership pursuant to the Indenture between the registrants and Bank One Trust Company, N.A., as trustee. 99.1 -- Form of Letter of Transmittal.
- --------------- * Indicates exhibits incorporated by reference as indicated; all other exhibits are filed herewith. ITEM 22. UNDERTAKINGS The undersigned Registrant hereby undertakes: (a) that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the II-5 49 registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (b) to respond to requests for information that is incorporated by reference into the prospectus pursuant to Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request. (c) to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the Registration Statement when it became effective. II-6 50 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Omaha, State of Nebraska, on September 20, 2000. NORTHERN BORDER PARTNERS, L.P. (A Delaware Limited Partnership) By: /s/ LARRY L. DeROIN ---------------------------------- Name: Larry L. DeRoin Title: Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Larry L. DeRoin and Jerry L. Peters, and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ LARRY L. DeROIN Chief Executive Officer and September 20, 2000 - ----------------------------------------------------- Chairman of the Partnership Larry L. DeRoin Policy Committee /s/ STANLEY C. HORTON Member of the Partnership Policy September 20, 2000 - ----------------------------------------------------- Committee Stanley C. Horton /s/ CUBA WADLINGTON, JR. Member of the Partnership Policy September 20, 2000 - ----------------------------------------------------- Committee Cuba Wadlington, Jr. /s/ JERRY L. PETERS Chief Financial and Accounting September 20, 2000 - ----------------------------------------------------- Officer Jerry L. Peters
II-7 51 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Omaha, State of Nebraska, on September 20, 2000. NORTHERN BORDER INTERMEDIATE PARTNERSHIP (A Delaware Limited Partnership) By: /s/ LARRY L. DeROIN ---------------------------------- Name: Larry L. DeRoin Title: Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Larry L. DeRoin and Jerry L. Peters, and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ LARRY L. DeROIN Chief Executive Officer and September 20, 2000 - ----------------------------------------------------- Chairman of the Partnership Larry L. DeRoin Policy Committee /s/ STANLEY C. HORTON Member of the Partnership Policy September 20, 2000 - ----------------------------------------------------- Committee Stanley C. Horton /s/ CUBA WADLINGTON, JR. Member of the Partnership Policy September 20, 2000 - ----------------------------------------------------- Committee Cuba Wadlington, Jr. /s/ JERRY L. PETERS Chief Financial and Accounting September 20, 2000 - ----------------------------------------------------- Officer Jerry L. Peters
II-8 52 INDEX TO EXHIBITS
EXHIBIT NUMBER EXHIBIT ------- ------- *3.1 -- Form of Amended and Restated Agreement of Limited Partnership of Northern Border Partners, L.P. (Exhibit 3.1 No. 2 to the Partnership's Form S-1 Registration Statement, Registration No. 33-66158 ("Form S-1")). *3.2 -- Form of Amended and Restated Agreement of Limited Partnership For Northern Border Intermediate Limited Partnership (Exhibit 10.1 to Form S-1). *4.1 -- Indenture, dated as of June 2, 2000, between the registrants and Bank One Trust Company, N.A. (Exhibit 4.1 to the Partnership's Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2000 ("June 2000 10-Q")). 4.2 -- First Supplemental Indenture, dated as of September 14, 2000, between the registrants and Bank One Trust Company, N.A. *4.3 -- Registration Rights Agreement, dated June 2, 2000, by and among the registrants and Banc of America Securities LLC, Banc One Capital Markets, Inc. and SunTrust Equitable Securities, as Initial Purchasers (Exhibit 4.2 to June 2000 10-Q). 4.4 -- Registration Rights Agreement, dated September 14, 2000, by and among the registrants and Banc of America Securities LLC, Banc One Capital Markets, Inc. and SunTrust Equitable Securities, as Initial Purchasers. 5.1 -- Opinion of Vinson & Elkins L.L.P., as to the validity of the new notes. 8.1 -- Opinion of Vinson & Elkins L.L.P., as to certain tax matters (included in Exhibit 5.1). *10.1 -- Northern Border Pipeline Company General Partnership Agreement between Northern Plains Natural Gas Company, Northwest Border Pipeline Company, Pan Border Gas Company, TransCanada Border Pipeline Ltd. and TransCan Northern Ltd., effective March 9, 1978, as amended (Exhibit 10.2 to Form S-1). *10.2 -- Operating Agreement between Northern Border Pipeline Company and Northern Plains Natural Gas Company, dated February 28, 1980 (Exhibit 10.3 to Form S-1). *10.3 -- Administrative Services Agreement between NBP Services Corporation, Northern Border Partners, L.P. and Northern Border Intermediate Limited Partnership (Exhibit 10.4 to Form S-1). *10.4 -- Note Purchase Agreement between Northern Border Pipeline Company and the parties listed therein, dated July 15, 1992 (Exhibit 10.6 to Form S-1). *10.4.1 -- Supplemental Agreement to the Note Purchase Agreement dated as of June 1, 1995 (Exhibit 10.6.1 to the Partnership's Annual Report on Form 10-K for the year ended December 31, 1995 ("1995 10-K")). *10.5 -- Guaranty made by Panhandle Eastern Pipeline Company, dated October 31, 1992 (Exhibit 10.9 to Form S-1). *10.6 -- Northern Border Pipeline Company U.S. Shippers Service Agreement between Northern Border Pipeline Company and Enron Gas Marketing, Inc., dated June 22, 1990 (Exhibit 10.10 to Form S-1). *10.6.1 -- Amended Exhibit A to Northern Border Pipeline Company U.S. Shippers Service Agreement between Northern Border Pipeline Company and Enron Gas Marketing, Inc. (Exhibit 10.10.1 to the Partnership's Annual Report on Form 10-K for the year ended December 31, 1993 ("1993 10-K")).
53
EXHIBIT NUMBER EXHIBIT ------- ------- *10.6.2 -- Amended Exhibit A to Northern Border Pipeline U.S. Shippers Service Agreement between Northern Border Pipeline Company and Enron Gas Marketing, Inc., effective November 1, 1994 (Exhibit 10.10.2 to the Partnership's Annual Report on Form 10-K for the year ended December 31, 1994). *10.6.3 -- Amended Exhibit A's to Northern Border Pipeline Company U.S. Shipper Service Agreement effective, August 1, 1995 and November 1, 1995 (Exhibit 10.10.3 to 1995 10-K). *10.6.4 -- Amended Exhibit A to Northern Border Pipeline Company U.S. Shipper Service Agreement effective April 1, 1998 (Exhibit 10.10.4 to the Partnership's Annual Report on Form 10-K for the year ended December 31, 1997 ("1997 10-K")). *10.7 -- Guaranty made by Northern Natural Gas Company, dated October 7, 1993 (Exhibit 10.11.1 to 1993 10-K). *10.8 -- Guaranty made by Northern Natural Gas Company, dated October 7, 1993 (Exhibit 10.11.2 to 1993 10-K). *10.9 -- Northern Border Pipeline Company U.S. Shippers Service Agreement between Northern Border Pipeline Company and Western Gas Marketing Limited, as agent for TransCanada PipeLines Limited, dated December 15, 1980 (Exhibit 10.13 to Form S-1). *10.9.1 -- Amendment to Northern Border Pipeline Company Service Agreement extending the term effective November 1, 1995 (Exhibit 10.13.1 to 1995 10-K). *10.10 -- Form of Seventh Supplement Amending Northern Border Pipeline Company General Partnership Agreement (Exhibit 10.15 to Form S-1). *10.11 -- Northern Border Pipeline Company U.S. Shippers Service Agreement between Northern Border Pipeline Company and Transcontinental Gas Pipe Line Corporation, dated July 14, 1983, with Amended Exhibit A effective February 11, 1994 (Exhibit 10.17 to 1995 10-K). *10.12 -- Form of Credit Agreement among Northern Border Pipeline Company, The First National Bank of Chicago, as Administrative Agent, The First National Bank of Chicago, Royal Bank of Canada, and Bank of America National Trust and Savings Association, as Syndication Agents, First Chicago Capital Markets, Inc., Royal Bank of Canada, and BancAmerica Securities, Inc, as Joint Arrangers and Lenders (as defined therein) dated as of June 16, 1997 (Exhibit 10(c) to Amendment No. 1 to Form S-3, Registration Statement No. 333-40601 ("Form S-3")). *10.13 -- Northern Border Pipeline Company U.S. Shippers Service Agreement between Northern Border Pipeline Company and Enron Capital & Trade Resources Corp. dated October 15, 1997 (Exhibit 10.21 to 1997 10-K). *10.14 -- Northern Border Pipeline Company U.S. Shippers Service Agreement between Northern Border Pipeline Company and Enron Capital & Trade Resources Corp. dated October 15, 1997 (Exhibit 10.22 to 1997 10-K). *10.15 -- Northern Border Pipeline Company U.S. Shippers Service Agreement between Northern Border Pipeline Company and Enron Capital & Trade Resources Corp. dated August 5, 1997 with Amendment dated September 25, 1997 (Exhibit 10.25 to 1997 10-K). *10.16 -- Northern Border Pipeline Company U.S. Shippers Service Agreement between Northern Border Pipeline Company and Enron Capital & Trade Resources Corp. dated August 5, 1997 (Exhibit 10.26 to 1997 10-K).
54
EXHIBIT NUMBER EXHIBIT ------- ------- *10.17 -- Northern Border Pipeline Company U.S. Shippers Service Agreement between Northern Border Pipeline Company and TransCanada Gas Services Inc., as agent for TransCanada PipeLines Limited dated August 5, 1997 (Exhibit 10.27 to 1997 10-K). *10.18 -- Northern Border Pipeline Company U.S. Shippers Service Agreement between Northern Border Pipeline Company and TransCanada Gas Services Inc., as agent for TransCanada PipeLines Limited dated August 5, 1997 (Exhibit 10.28 to 1997 10-K). *10.19 -- Indenture, dated as of August 17, 1999, between Northern Border Pipeline Company and Bank One Trust Company, NA, successor to The First National Bank of Chicago, as trustee (Exhibit No. 4.1 to Northern Border Pipeline Company's Form S-4 Registration Statement, Registration No. 333-88577 ("Form S-4")). *10.20 -- Project Management Agreement by and between Northern Plains Natural Gas Company and Enron Engineering & Construction Company, dated March 1, 1996 (Exhibit No. 10.39 to Form S-4). *10.21 -- Eighth Supplement Amending Northern Border Pipeline Company General Partnership Agreement (Exhibit 10.15 of Form S-4). *10.22 -- 364-Day Credit Agreement dated as of June 28, 2000 between Northern Border Partners, L.P., 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) (Exhibit 10.1 to June 2000 10-Q). 10.23 -- First Amendment to 364-Day Credit Agreement effective as of June 28, 2000 among Northern Border Partners, L.P., Northern Border Intermediate Limited Partnership, Bank of America, N.A., Administrative Agent, and the Lenders (as defined therein). *10.24 -- Revolving Credit Agreement dated as of June 28, 2000 between Northern Border Partners, L.P., 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) (Exhibit 10.2 to June 2000 10-Q). 10.25 -- First Amendment to Revolving Credit Agreement effective as of June 28, 2000 among Northern Border Partners, L.P., Northern Border Intermediate Limited Partnership, Bank of America, N.A., Administrative Agent, and the Lenders (as defined therein). 12.1 -- Statement re computation of ratios. 21 -- The subsidiaries of Northern Border Partners, L.P. are Northern Border Intermediate Limited Partnership; Northern Border Pipeline Company; NBP Energy Pipelines, L.L.C.; Black Mesa Holdings, Inc.; Black Mesa Pipeline, Inc.; Black Mesa Pipeline Operations L.L.C.; Black Mesa Technologies, Inc. and Black Mesa Technologies Services L.L.C. 23.1 -- Consent of Arthur Andersen LLP. 24.1 -- Powers of Attorney (included on pages II-7 and II-8 of the Registration Statement).
55
EXHIBIT NUMBER EXHIBIT ------- ------- 25.1 -- Statement of Eligibility of Bank One Trust Company, N.A., as trustee, on Form T-1 with respect to the issuance of 8 7/8% Senior Notes due 2010, Series A, by Northern Border Partners, L.P. pursuant to the Indenture between the registrants and Bank One Trust Company, N.A., as trustee. 25.2 -- Statement of Eligibility of Bank One Trust Company, N.A., as trustee, on Form T-1 with respect to the guarantee of 8 7/8% Senior Notes due 2010, Series A, by Northern Border Intermediate Limited Partnership pursuant to the Indenture between the registrants and Bank One Trust Company, N.A., as trustee. 99.1 -- Form of Letter of Transmittal.
- --------------- * Indicates exhibits incorporated by reference as indicated; all other exhibits are filed herewith. EX-4.2 2 h80326ex4-2.txt FIRST SUPPLEMENTAL INDENTURE 1 EXHIBIT 4.2 FIRST SUPPLEMENTAL INDENTURE This FIRST SUPPLEMENTAL INDENTURE, dated as of September 14, 2000 (the "First Supplemental Indenture"), to the Indenture, dated as of June 2, 2000 (the "Indenture"), is by and among NORTHERN BORDER PARTNERS, L.P., a Delaware limited partnership (hereinafter called the "Partnership"), NORTHERN BORDER INTERMEDIATE LIMITED PARTNERSHIP, a Delaware limited partnership (the "Guarantor"), and BANK ONE TRUST COMPANY, N.A., as Trustee. RECITALS OF THE PARTNERSHIP: WHEREAS, pursuant to the Indenture the Partnership established and provided for the issuance by the Partnership of a series of Notes designated as its 8-7/8% Senior Notes due June 15, 2010 (the "Notes") in the aggregate principal amount of $150,000,000; WHEREAS, Section 2.02 of the Indenture expressly provides the series of Notes may be reopened for issuances of additional Notes of such series without the consent of the Holders, provided that no additional Notes may be issued if an Event of Default has occurred and is continuing with respect to the Notes; WHEREAS, no Event of Default has occurred and is continuing with respect to the Notes; WHEREAS, the Partnership desires to reopen the series of Notes and issue $100,000,000 principal amount of additional Notes which will be part of the same series as the Notes and rank equally with the Notes in all respects; WHEREAS, in connection with the reopening of the series, the Partnership desires to amend the Notes in certain respects pursuant to Section 9.01(a) of the Indenture; WHEREAS, the conditions set forth in the Indenture for the execution and delivery of this First Supplemental Indenture have been complied with; and WHEREAS, all things necessary to make this First Supplemental Indenture a valid agreement of the Partnership and the Trustee, in accordance with its terms, and a valid amendment of, and supplement to, the Indenture have been done. NOW THEREFORE: Pursuant to Section 2.02 of the Indenture, the series of Notes established by the Indenture is hereby reopened and there is hereby authorized for issuance, authentication and delivery $100,000,000 principal amount of additional Notes (the "Additional Notes") of the same series as the Notes, and in consideration of the premises and the purchase and acceptance of the Additional Notes by the Holders thereof, the Partnership mutually covenants and agrees with the Trustee, for the equal and proportionate benefit of all Holders of the Notes and the Additional Notes, that the Indenture is hereby supplemented and amended, to the extent and for the purposes expressed herein, as follows: 2 ARTICLE ONE AMENDMENTS TO THE INDENTURE Section 1.1 Amendments to Indenture. The Indenture is hereby amended and supplemented as follows: (a) The series of Notes established by the Indenture is hereby reopened for the issuance of Additional Notes in an aggregate principal amount of $100,000,000 which shall rank equally with the Notes in all respects, shall form a single series of $250,000,000 principal amount with the Notes, with the same CUSIP number, and shall have the same terms as the Notes, except that the Additional Notes initially will be dated September 14, 2000. Interest on the Additional Notes shall accrue from June 2, 2000. A copy of the form of Additional Note to be issued on September 14, 2000 shall be identical to the form of Note included as Exhibit A to the Indenture except that the date of original issuance will be September 14, 2000 and references to the Registration Rights Agreement dated as of June 2, 2000 shall instead refer to the Registration Rights Agreement dated as of September 14, 2000. (b) All references in the Indenture and the form of Note attached thereto as Exhibit A to the series of Notes established by the Indenture and in the outstanding Notes shall be amended, supplemented and deemed to include the Additional Notes issued hereunder. (c) The Additional Notes shall be subject to the Indenture, as amended hereby. (d) The last sentence of Section 4 of the form of Note included as Exhibit A to the Indenture, and of the outstanding Notes, shall be deleted in its entirety and the following shall be substituted in place thereof: This series of Notes may be reopened for issuances of additional Notes without the consent of Holders, provided that no additional Notes may be issued if an Event of Default has occurred and is continuing with respect to the Notes. ARTICLE TWO MISCELLANEOUS Section 2.1 Defined Terms. Unless otherwise provided in this First Supplemental Indenture, all defined terms used in this First Supplemental Indenture shall have the meanings assigned to them in the Indenture. Section 2.2 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939. If and to the extent that any provision of this First Supplemental Indenture limits, qualifies or conflicts with another provision included in this First Supplemental Indenture or in the Indenture which is required to be included herein or therein by any of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, as amended, such required provision shall control. 2 3 Section 2.3 New York Law to Govern. THIS FIRST SUPPLEMENTAL INDENTURE AND THE NOTES (INCLUDING THE ADDITIONAL NOTES) SHALL BE DEEMED TO BE CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE. Section 2.4 Counterparts. This First Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. Section 2.5 Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof. Section 2.6 Severability of Provisions. In case any provision in this First Supplemental Indenture or in the Notes (including the Additional Notes) 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. Section 2.7 Successors and Assigns. All covenants and agreements in this First Supplemental Indenture by the parties hereto shall bind their respective successors and assigns and inure to the benefit of their respective successors and assigns, whether so expressed or not. Section 2.8 Benefit of First Supplemental Indenture. Nothing in this First Supplemental Indenture, express or implied, shall give to any Person, other than the parties hereto, any Registrar, any Paying Agent and their successors hereunder, and the Holders of the Notes, any benefit or any legal or equitable right, remedy or claim under this First Supplemental Indenture. Section 2.9 Acceptance by Trustee. The Trustee accepts the amendments to the Indenture effected by this First Supplemental Indenture and agrees to execute the trusts created by the Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture. Without limiting the generality of the foregoing, the Trustee assumes no responsibility for the correctness of the recitals contained herein, which shall be taken as the statements of the Partnership and except as provided in the Indenture the Trustee shall not be responsible or accountable in any way whatsoever for or with respect to the validity or execution or sufficiency of this First Supplemental Indenture and the Trustee makes no representation with respect thereto. 3 4 IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed, all as of the day and year first above written. ISSUER: NORTHERN BORDER PARTNERS, L.P. By: /s/ Jerry L. Peters ------------------------------------------ Name: Jerry L. Peters ---------------------------------------- Title: Chief Financial & Accounting Officer --------------------------------------- GUARANTOR: NORTHERN BORDER INTERMEDIATE LIMITED PARTNERSHIP By: /s/ Jerry L. Peters ------------------------------------------ Name: Jerry L. Peters ---------------------------------------- Title: Chief Financial & Accounting Officer --------------------------------------- TRUSTEE: BANK ONE TRUST COMPANY, N.A., as Trustee By: /s/ Sharon McGrath ------------------------------------------ Name: Sharon McGrath ---------------------------------------- Title: Vice President --------------------------------------- 4 EX-4.4 3 h80326ex4-4.txt REGISTRATION RIGHTS AGREEMENT 1 EXHIBIT 4.4 Execution Copy REGISTRATION RIGHTS AGREEMENT This Registration Rights Agreement (this "Agreement") is made and entered into as of September 14, 2000 by and among Northern Border Partners, L.P., a Delaware limited partnership (the "Partnership"), Northern Border Intermediate Limited Partnership, a Delaware limited partnership, and Banc of America Securities LLC ("BOA"), Banc One Capital Markets, Inc. and SunTrust Equitable Securities (the "Initial Purchasers"), who have agreed to purchase the Partnership's 8 7/8 % Senior Notes due 2010 (the "Senior Notes") pursuant to and subject to the terms and conditions of a certain Purchase Agreement, dated May 26, 2000 (the "Original Purchase Agreement") pursuant to which the Partnership issued and sold an aggregate of $150,000,000 of the Senior Notes (the "Original Senior Notes"), and pursuant to and subject to the terms of a certain Purchase Agreement, dated September 7, 2000 (the "Purchase Agreement") pursuant to which the Partnership issued and sold an additional $100,000,000 of the Senior Notes (the "Additional Senior Notes"), each such Purchase Agreement being entered into by and among the Partnership and the Initial Purchasers. For purposes of this Agreement, the term "Senior Notes" shall refer to the Additional Senior Notes issued pursuant to the Purchase Agreement. In order to induce the Initial Purchasers to purchase the Senior Notes, the Partnership has agreed to provide the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the obligation of the Initial Purchasers to purchase the Senior Notes pursuant to the Purchase Agreement. The parties hereby agree as follows: SECTION 1. DEFINITIONS As used in this Agreement, the following capitalized terms shall have the following meanings: Advice: As defined in Section 6(d) hereof. Affiliate: With respect to any specified Person, "Affiliate" shall mean any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control," when used with respect to any Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms "affiliated," "controlling" and "controlled" have meanings correlative to the foregoing. Notwithstanding the foregoing, with respect to the Partnership "Affiliate" shall mean Northern Border Pipeline Company, Northern Border Intermediate Limited Partnership, Northern Plains Natural Gas Company, Pan Border Gas Company and Northwest Border Pipeline Company. Authorized Officer: Any of the Chief Executive Officer, Chief Financial and Accounting Officer or any vice president of the Partnership, acting singly. 2 Broker-Dealer: Any broker or dealer registered under the Exchange Act. Broker-Dealer Transfer Restricted Securities: New Senior Notes that are acquired by a Broker-Dealer in the Exchange Offer in exchange for Senior Notes that such Broker-Dealer acquired for its own account as a result of market-making activities or other trading activities (other than Senior Notes acquired directly from the Partnership or any of its Affiliates). Business Day: Any day except a Saturday, Sunday or other day in the City of New York, or in the city of the corporate trust office of the Trustee, on which banks are authorized to close. Commission: The Securities and Exchange Commission. Consummate: The Exchange Offer shall be deemed "consummated" for purposes of this Agreement upon the occurrence of (i) the filing and effectiveness under the Securities Act of the Exchange Offer Registration Statement relating to the New Senior Notes to be issued in the Exchange Offer, (ii) the maintenance of such Exchange Offer Registration Statement continuously effective and the keeping of the Exchange Offer open for a period not less than the minimum period required pursuant to Section 3(b) hereof, and (iii) the delivery by the Partnership to the Trustee under the Indenture of New Senior Notes in the same aggregate principal amount as the aggregate principal amount of Senior Notes that were tendered by Holders thereof pursuant to the Exchange Offer. Damages Payment Date: With respect to the Transfer Restricted Securities, each Interest Payment Date until the earlier of (i) the date on which Liquidated Damages are no longer payable and (ii) maturity of the Notes. Definitive Notes: As defined in the Indenture. Effectiveness Target Date: As defined in Section 5. Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. Exchange Offer: The registration by the Partnership under the Securities Act of the New Senior Notes pursuant to an Exchange Offer Registration Statement pursuant to which the Partnership offers the Holders of all outstanding Transfer Restricted Securities the opportunity to exchange all such outstanding Transfer Restricted Securities held by such Holders for New Senior Notes in an aggregate principal amount equal to the aggregate principal amount of the Transfer Restricted Securities tendered in such exchange offer by such Holders. Exchange Offer Registration Statement: The Registration Statement relating to the Exchange Offer, including the related Prospectus. 3 Exempt Resales: The transactions in which the Initial Purchasers propose to sell the Senior Notes (a) to certain "qualified institutional buyers," as such term is defined in Rule 144A under the Securities Act and (b) to certain institutional "accredited investors" as such term is defined in Rule 501(a)(1),(2),(3) or (7) of Regulation D under the Securities Act. Global Note Holder: A "Holder" as defined in the Indenture. Holders: As defined in Section 2(b) hereof. Indenture: The Indenture, dated as of June 2, 2000 among the Partnership and Bank One Trust Company, N.A., as trustee (the "Trustee"), pursuant to which the Notes are to be issued, as such Indenture is amended or supplemented from time to time in accordance with the terms thereof. Initial Closing Date: June 2, 2000, the date of the issuance by the Partnership of the Original Senior Notes. Initial Purchasers: As defined in the preamble hereto. Interest Payment Date: As defined in the Indenture and the Notes. Liquidated Damages: As defined in Section 5 hereof. Memorandum: As defined in the Purchase Agreement. NASD: National Association of Securities Dealers, Inc. Notes: The Senior Notes and the New Senior Notes. New Senior Notes: The Partnership's 8 7/8% Senior Notes due 2010, Series A to be issued pursuant to the Indenture (i) in the Exchange Offer or (ii) upon the request of any holder of Senior Notes covered by a Shelf Registration Statement, in exchange for such Senior Notes. Person: An individual, partnership, corporation, limited liability company, joint venture, association, joint-stock company, trust or unincorporated organization, or a government or agency or political subdivision thereof or any other entity. Prospectus: The prospectus included in a Registration Statement at the time such Registration Statement is declared effective, as amended or supplemented by any prospectus supplement and by all other amendments thereto, including post-effective amendments, and all material incorporated by reference into such Prospectus. 4 Record Holder: With respect to any Damages Payment Date relating to Notes, each Person who is a Holder of Notes on the record date with respect to the Interest Payment Date on which such Damages Payment Date shall occur. Registration Default: As defined in Section 5 hereof. Registration Statement: Any registration statement of the Partnership relating to (a) an offering of New Senior Notes pursuant to an Exchange Offer or (b) the registration for resale of Transfer Restricted Securities pursuant to the Shelf Registration Statement, in each case (i) which is filed pursuant to the provisions of this Agreement, and (ii) including the Prospectus included therein, all amendments and supplements thereto (including post-effective amendments) and all exhibits and material incorporated by reference therein. Restricted Broker-Dealer: Any Broker-Dealer that holds Broker-Dealer Transfer Restricted Securities. Securities Act: The Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. Shelf Filing Deadline: As defined in Section 4 hereof. Shelf Registration Statement: As defined in Section 4 hereof. TIA: The Trust Indenture Act of 1939, as amended, as in effect on the date of the Indenture. Transfer Restricted Securities: Each Senior Note, until the earliest to occur of (a) the date on which such Senior Note is exchanged in the Exchange Offer and entitled to be resold to the public by the Holder thereof without complying with the prospectus delivery requirements of the Securities Act, (b) the date on which such Senior Note has been effectively registered under the Securities Act and disposed of in accordance with a Shelf Registration Statement, (c) the date on which such Senior Note is distributed to the public pursuant to Rule 144 or is saleable pursuant to Rule 144(k) under the Securities Act and (d) the date on which such Senior Note is distributed by a Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the Exchange Offer Registration Statement (including delivery of the Prospectus contained therein). Underwritten Registration or Underwritten Offering: A registration in which securities of the Partnership are sold to an underwriter for reoffering to the public. SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT (a) Transfer Restricted Securities. The securities entitled to the benefits of this Agreement are the Transfer Restricted Securities. 5 (b) Holders of Transfer Restricted Securities. A Person is deemed to be a holder of Transfer Restricted Securities (each, a "Holder") whenever such Person owns Transfer Restricted Securities. SECTION 3. REGISTERED EXCHANGE OFFER (a) Unless the Exchange Offer shall not be permissible under applicable law or Commission policy (after the procedures set forth in Section 6(a) below have been complied with), the Partnership shall (i) cause to be filed with the Commission as soon as practicable after the Initial Closing Date, but in no event later than 120 days after the Initial Closing Date, the Exchange Offer Registration Statement under the Securities Act relating to the New Senior Notes and the Exchange Offer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to become effective at the earliest possible time, but in no event later than 180 days after the Initial Closing Date, (iii) in connection with the foregoing, (A) file all pre-effective amendments to such Exchange Offer Registration Statement as may be necessary in order to cause such Exchange Offer Registration Statement to become effective, (B) if applicable, file a post-effective amendment to such Exchange Offer Registration Statement pursuant to Rule 430A under the Securities Act and (C) cause all necessary filings, if any, in connection with the registration and qualification of the New Senior Notes to be made under the Blue Sky laws of such jurisdictions as are necessary to permit Consummation of the Exchange Offer and (iv) upon the effectiveness of such Exchange Offer Registration Statement, commence and Consummate the Exchange Offer. The Exchange Offer Registration Statement shall be on the appropriate form permitting registration of the New Senior Notes to be offered in exchange for the Transfer Restricted Securities and to permit sales of Broker- Dealer Transfer Restricted Securities by Broker-Dealers as contemplated by Section 3(c) below. (b) The Partnership shall use its reasonable best efforts to cause the Exchange Offer Registration Statement to be effective continuously for a period of thirty (30) days from the date on which the Exchange Offer Registration Statement is declared effective and shall keep the Exchange Offer open for a period of not less than the minimum period required under applicable federal and state securities laws to Consummate the Exchange Offer; provided, however, that in no event shall such period be less than 20 Business Days. The Partnership shall cause the Exchange Offer to comply with all applicable federal and state securities laws. No securities other than the Notes shall be included in the Exchange Offer Registration Statement. The Partnership shall use its reasonable best efforts to cause the Exchange Offer to be Consummated on the earliest practicable date after the Exchange Offer Registration Statement has become effective, but in no event later than 30 Business Days thereafter. (c) The Partnership shall include a "Plan of Distribution" section in the Prospectus contained in the Exchange Offer Registration Statement and indicate that any Restricted Broker-Dealer who holds Senior Notes that are Transfer Restricted Securities and that were acquired for the account of such Broker-Dealer as a result of market-making activities or other trading activities (other than Transfer Restricted Securities acquired directly from the Partnership or one of its Affiliates) may exchange such Senior Notes pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be an "underwriter" within the meaning of the Securities Act and must, therefore, deliver a prospectus meeting the requirements of the 6 Securities Act in connection with its initial sale of the New Senior Notes received by such Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may be satisfied by the delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer Registration Statement. Such "Plan of Distribution" section shall also contain all other information with respect to such resales of Broker-Dealer Transfer Restricted Securities that the Commission may require in order to permit such sales pursuant thereto but such "Plan of Distribution" shall not name any such Broker-Dealer or disclose the amount of Notes held by any such Broker-Dealer except to the extent required by the Commission as a result of a change in policy after the date of this Agreement. The Partnership shall use its reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective, supplemented and amended as required by the provisions of Section 6(c) below to the extent necessary to ensure that it is available for resales of Broker-Dealer Transfer Restricted Securities acquired by Restricted Broker-Dealers and to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time to time, for a period of 120 days from the date on which the Exchange Offer Registration Statement is declared effective or, if shorter, until all Broker-Dealer Transfer Restricted Securities have been sold thereunder. The Partnership shall provide sufficient copies of the latest version of such Prospectus to such Restricted Broker-Dealers promptly upon request at any time during such 120 day period in order to facilitate such sales. SECTION 4. SHELF REGISTRATION (a) Shelf Registration. If (i) the Partnership is not required to file an Exchange Offer Registration Statement or to consummate the Exchange Offer because the Exchange Offer is not permitted by applicable law or Commission policy (after the procedures set forth in Section 6(a) below have been complied with) or (ii) if any Holder of Transfer Restricted Securities shall notify the Partnership within twenty (20) Business Days of the Consummation of the Exchange Offer that (A) such Holder is prohibited by applicable law or Commission policy from participating in the Exchange Offer, or (B) such Holder may not resell the New Senior Notes acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Senior Notes acquired directly from the Partnership or one of its Affiliates, then the Partnership shall: (x) cause to be filed a shelf registration statement pursuant to Rule 415 under the Securities Act, which may be an amendment to the Exchange Offer Registration Statement (in either event, the "Shelf Registration Statement") on or prior to the earliest to occur of (1) the 60th day after the date on which the Partnership receives notice from the Commission or determines that it is not required to file the Exchange Offer Registration Statement pursuant to clause (i) above, (2) the 60th day after the date on which the Partnership receives notice from a Holder of Transfer Restricted Securities as contemplated by clause (ii) above, and (3) the 150th day after the Initial Closing Date (such earliest date being the "Shelf Filing Deadline"), which Shelf Registration Statement 7 shall provide for resales of all Transfer Restricted Securities the Holders of which shall have provided the information required pursuant to Section 4(b) hereof; and (y) use its reasonable best efforts to cause such Shelf Registration Statement to be declared effective by the Commission on or before the 60th day after the Shelf Filing Deadline. The Partnership shall use its reasonable best efforts to keep such Shelf Registration Statement continuously effective, supplemented and amended as required by and subject to the provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is available for sales of Transfer Restricted Securities by the Holders thereof entitled to the benefit of this Section 4(a), and to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time to time, for a period of at least 18 months (as extended pursuant to Section 6(c)(i)) following the date on which such Shelf Registration Statement first becomes effective under the Securities Act or such shorter period ending when all of the Transfer Restricted Securities available for sale thereunder have been sold pursuant thereto. (b) Provision by Holders of Certain Information in Connection with the Shelf Registration Statement. No Holder of Transfer Restricted Securities may include any of its Transfer Restricted Securities in any Shelf Registration Statement pursuant to this Agreement unless and until such Holder furnishes to the Partnership in writing, within 15 Business Days after receipt of a request therefor, such information as the Partnership may reasonably request for use in connection with any Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. No Holder of Transfer Restricted Securities shall be entitled to Liquidated Damages pursuant to Section 5 hereof unless and until such Holder shall have provided all such reasonably requested information. Each Holder as to which any Shelf Registration Statement is being effected agrees to furnish promptly to the Partnership all information required to be disclosed in order to make the information previously furnished to the Partnership by such Holder not materially misleading. SECTION 5. LIQUIDATED DAMAGES If (i) any of the Registration Statements required by this Agreement are not filed with the Commission on or prior to the date specified for such filing in this Agreement then additional interest shall accrue on the principal amount of the Senior Notes at a rate of 0.25% per annum from the date such filing was required; (ii) any of such Registration Statements have not been declared effective by the Commission on or prior to the date specified for such effectiveness in this Agreement (the "Effectiveness Target Date") then additional interest shall accrue on the principal amount of the Senior Notes at a rate of 0.25% per annum from the Effectiveness Target Date; (iii) the Exchange Offer has not been Consummated within 30 Business Days after the Effectiveness Target Date with respect to the Exchange Offer Registration Statement then additional interest shall accrue on the principal amount of the Senior Notes at a rate of 0.25% per annum from the 31st Business Day after the Effectiveness Target Date; or (iv) any Registration Statement required by this Agreement is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within 30 days by a post-effective amendment to such Registration 8 Statement, the effectiveness of another Registration Statement or the use of the Prospectus (as amended or supplemented) is again permitted that cures such failure then additional interest shall accrue on the principal amount of the Senior Notes at a rate of 0.25% per annum from the 31st day following such Registration Statement ceasing to be effective (each such event referred to in clauses (i) through (iv), a "Registration Default"). The additional interest rate owing pursuant to the preceding clauses (i) through (iv) shall be increased by 0.25% per annum each 90-day period that such Registration Default continues, provided such additional interest does not exceed the Maximum Rate, as defined below. All accrued Liquidated Damages (as defined below) shall be paid to the Global Note Holders or Holders of certificated Notes by the Partnership on each Interest Payment Date generally in accordance with the provisions in the Indenture regarding payment of interest. Notwithstanding anything to the contrary set forth herein, (1) upon filing of the Exchange Offer Registration Statement (and/or, if applicable, the Shelf Registration Statement), in the case of (i) above, (2) upon the effectiveness of the Exchange Offer Registration Statement (and/or, if applicable, the Shelf Registration Statement), in the case of (ii) above, (3) upon Consummation of the Exchange Offer, in the case of (iii) above, or (4) upon the filing of a post-effective amendment to the Registration Statement or an additional Registration Statement that causes the Exchange Offer Registration Statement (and/or, if applicable, the Shelf Registration Statement) to again be declared effective or the Prospectus to be made usable in the case of (iv) above, the Liquidated Damages payable with respect to the Transfer Restricted Securities as a result of such clause (i), (ii), (iii) or (iv) ("Liquidated Damages"), as applicable, shall cease. Liquidated Damages on the Senior Notes may not exceed, in the aggregate, 1% of the face amount of the Senior Notes per annum (the "Maximum Rate"). All obligations of the Partnership set forth in the preceding paragraph that are outstanding with respect to any Transfer Restricted Security at the time such security ceases to be a Transfer Restricted Security shall survive until such time as all such obligations with respect to such security shall have been satisfied in full. SECTION 6. REGISTRATION PROCEDURES (a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the Partnership shall comply with all applicable provisions of Section 6(c) below, shall use its reasonable best efforts to effect such exchange to permit the sale of Broker-Dealer Transfer Restricted Securities being sold in accordance with the intended method or methods of distribution thereof (which shall be in a manner consistent with the terms of this Agreement), and shall comply with all of the following provisions: (i) If, following the date hereof and prior to the Consummation of the Exchange Offer, there has been published a change in Commission policy with respect to exchange offers such as the Exchange Offer, such that in the reasonable opinion of counsel to the Partnership there is a substantial question as to whether the Exchange Offer is permitted by applicable law or Commission policy, the Partnership hereby agrees to seek a no-action letter or other favorable decision from the Commission staff allowing the Partnership to Consummate an Exchange Offer for such Senior Notes. The Partnership hereby agrees to pursue the issuance of such a decision to the Commission 9 staff level but shall not be required to take commercially unreasonable action to effect a change of Commission policy. The Partnership hereby agrees, however, to take all such other actions as are reasonably requested by the Commission or the Commission staff or otherwise required in connection with the issuance of such decision, including without limitation, to (A) participate in telephonic conferences with the Commission or the Commission staff, (B) deliver to the Commission or the Commission staff an analysis prepared by counsel to the Partnership setting forth the legal bases, if any, upon which such counsel has concluded that such an Exchange Offer should be permitted and (C) diligently pursue a resolution (which need not be favorable) by the Commission staff of such submission. (ii) As a condition to its participation in the Exchange Offer pursuant to the terms of this Agreement, each Holder of Transfer Restricted Securities shall furnish, upon the request of the Partnership, prior to the Consummation thereof, a written representation to the Partnership (which may be contained in the letter of transmittal contemplated by the Exchange Offer Registration Statement) to the effect that (A) it is not an Affiliate of the Partnership, (B) it is not engaged in, and does not intend to engage in, and has no arrangement or understanding with any Person to participate in, a distribution (within the meaning of the Securities Act) of the New Senior Notes to be issued in the Exchange Offer and (C) it is acquiring the New Senior Notes in its ordinary course of business. In addition, all such Holders of Transfer Restricted Securities shall otherwise reasonably cooperate in the Partnership's preparations for the Exchange Offer. Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder using the Exchange Offer to participate in a distribution of the securities to be acquired in the Exchange Offer (1) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the Commission's letter to Sherman & Sterling dated July 2, 1993, and similar no-action letters (including any no-action letter obtained pursuant to clause (i) above), and (2) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction and that such a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K if the resales are of New Senior Notes obtained by such Holder in exchange for Senior Notes acquired by such Holder directly from the Partnership or an Affiliate thereof. (iii) Prior to effectiveness of the Exchange Offer Registration Statement, the Partnership shall provide a supplemental letter to the Commission (A) stating that the Partnership is registering the Exchange Offer in reliance on the position of the Commission enunciated in Exxon Capital Holdings Corporation (available May 13, 1988), Morgan Stanley and Co., Inc. (available June 5, 1991) and, if applicable, any no-action letter obtained pursuant to clause (i) above, (B) including a representation that the Partnership has not entered into any arrangement or understanding with any Person to distribute the New Senior Notes to be received in the Exchange Offer and that, to the best of the Partnership's information and belief, each Holder participating in the Exchange Offer is acquiring the New Senior Notes in its ordinary course of business and has no 10 arrangement or understanding with any Person to participate in the distribution of the New Senior Notes received in the Exchange Offer and (C) any other undertaking or representation required by the Commission as set forth in any no-action letter obtained pursuant to clause (i) above. (b) Shelf Registration Statement. In connection with the Shelf Registration Statement, the Partnership shall comply with all the provisions of Section 6(c) below and shall use its reasonable best efforts to effect such registration to permit the sale of the Transfer Restricted Securities being sold in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Partnership will as expeditiously as possible, and in any event within the time periods and otherwise in accordance with the provisions hereof, prepare and file with the Commission a Registration Statement relating to the registration on any appropriate form under the Securities Act, which form shall be available for the sale of the Transfer Restricted Securities in accordance with the intended method or methods of distribution thereof. (c) General Provisions. In connection with any Registration Statement and any Prospectus required by this Agreement to permit the sale or resale of Transfer Restricted Securities (including, without limitation, any Exchange Offer Registration Statement and the related Prospectus required to permit resales of Transfer Restricted Securities by Restricted Broker-Dealers), the Partnership shall: (i) use its reasonable best efforts to keep such Registration Statement continuously effective and provide all requisite financial statements for the period specified in Section 3 or 4 of this Agreement, as applicable, or such shorter period as will terminate when all Transfer Restricted Securities covered by such Registration Statement have been sold; upon the occurrence of any event that would cause any such Registration Statement or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not to be effective and usable for resale of Transfer Restricted Securities during the period required by this Agreement, the Partnership shall (1) file promptly an appropriate amendment to such Registration Statement, in the case of clause (A), correcting any such misstatement or omission, and (2) in the case of either clause (A) or (B), use its reasonable best efforts to cause such amendment to be declared effective and such Registration Statement and the related Prospectus to become usable for their intended purpose(s) as soon as practicable thereafter; (ii) prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period set forth in Section 3 or 4 hereof, as applicable, or such shorter period as will terminate when all Transfer Restricted Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act, and to comply fully with the applicable provisions of Rules 424, 430A and 462, as applicable under the Securities Act in a timely manner; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by 11 the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; (iii) advise the managing underwriter(s), if any, and selling Holders promptly and, if requested by such Persons, to confirm such advice in writing, (A) when the Prospectus or any Prospectus supplement or post-effective amendment thereto has been filed, and, with respect to any Registration Statement or any post-effective amendment thereto, when the same has become effective, (B) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information relating thereto, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Transfer Restricted Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes, (D) of the existence of any fact or the happening of any event that makes any statement of a material fact made in the Registration Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein untrue in any material respect, or that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Transfer Restricted Securities under state securities or Blue Sky laws, the Partnership shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest practicable time; (iv) upon written request, furnish to the Initial Purchasers, and, upon written request, to each of the selling Holders and each of the managing underwriter(s) in connection with such sale, if any, before filing with the Commission, copies of any Registration Statement or any Prospectus included therein or any amendments or supplements to any such Registration Statement or Prospectus, which documents will be subject to the review of such selling Holders and underwriter(s) in connection with such sale, if any, for a period of at least five Business Days, and the Partnership will not file any such Registration Statement or Prospectus or any amendment or supplement to any such Registration Statement or Prospectus to which a selling Holder of Transfer Restricted Securities covered by such Registration Statement or the underwriter(s) in connection with such sale, if any, shall reasonably object within five Business Days after the receipt thereof. A selling Holder or managing underwriter in connection with such sale, if any, shall be deemed to have reasonably objected to such filing (A) if such Registration Statement, amendment, Prospectus or supplement, as applicable, as proposed to be filed, contains a material misstatement or omission or fails to comply with the applicable requirements of the Securities Act or (B) if any of the information furnished to the Partnership by the selling Holder or managing underwriter in connection with such sale, if any, and included in such Registration Statement, amendment, Prospectus or supplement, as applicable, as proposed to be filed is incorrect in any respect; 12 (v) upon written request, promptly prior to the filing of any document that is to be incorporated by reference into a Registration Statement or Prospectus, provide copies of such document to the selling Holders and to the underwriter(s) in connection with such sale, if any, make the Partnership's representatives available for discussion of such document and other customary due diligence matters, and include such information in such document prior to the filing thereof as such selling Holders or underwriters, if any, reasonably may request; (vi) in the case of a shelf registration, make available at reasonable times for inspection by the selling Holders, any managing underwriter participating in the disposition pursuant to such Registration Statement, if any, and any attorney or accountant retained by such selling Holders or any of the underwriter(s), all relevant financial and other records, pertinent corporate documents and properties of the Partnership and cause the officers, directors and employees of the Partnership to supply all information reasonably requested by any such underwriter, attorney or accountant in connection with such Registration Statement or any post-effective amendment thereto subsequent to the filing thereof and prior to its effectiveness; (vii) if requested by any selling Holders or the managing underwriter(s) in connection with such sale, if any, promptly incorporate in any Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such managing underwriter(s), if any, may request to have included therein, including, without limitation, information relating to the "Plan of Distribution" of the Transfer Restricted Securities, information with respect to the principal amount of Transfer Restricted Securities being sold to such underwriter(s), the purchase price being paid therefor and any other terms of the offering of the Transfer Restricted Securities to be sold in such offering; and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after the Partnership is notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment; (viii) cause the Transfer Restricted Securities covered by the Registration Statement to be rated by the appropriate rating agencies, if so requested by the Holders of a majority in aggregate principal amount of Notes covered thereby or the managing underwriter(s) in connection with such sale, if any, unless such Transfer Restricted Securities are already so rated; (ix) furnish to each selling Holder and each of the managing underwriter(s) in connection with such sale, if any, without charge, at least one copy of the Registration Statement, as first filed with the Commission, and of each amendment thereto, including all documents incorporated by reference therein and all exhibits (including exhibits incorporated therein by reference); (x) deliver to each selling Holder and each of the managing underwriter(s), if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons reasonably may request; the Partnership hereby consents to the use of the Prospectus and any amendment or supplement thereto by each of the selling Holders and each of the underwriter(s), if 13 any, in connection with the offering and the sale of the Transfer Restricted Securities covered by the Prospectus or any amendment or supplement thereto; (xi) enter into such agreements (including an underwriting agreement), and make such representations and warranties with respect to the business of the Partnership as are customarily addressed in representations and warranties made by issuers to underwriters in underwritten offerings, and take all such other actions in connection therewith in order to expedite or facilitate the disposition of the Transfer Restricted Securities pursuant to any Registration Statement contemplated by this Agreement, all to such extent as may be requested by the Initial Purchasers or by any Holder of Transfer Restricted Securities or managing underwriter in connection with any sale or resale pursuant to any Registration Statement contemplated by this Agreement; and whether or not an underwriting agreement is entered into and whether or not the registration is an Underwritten Registration, the Partnership shall: (A) furnish to each Initial Purchaser, each selling Holder and each managing underwriter, if any, in such substance and scope as they may reasonably request and as are customarily made by issuers to underwriters in primary underwritten offerings, upon the date of the Consummation of the Exchange Offer and, if applicable, the effectiveness of the Shelf Registration Statement: (1) a certificate, dated the date of Consummation of the Exchange Offer or the date of effectiveness of the Shelf Registration Statement, as the case may be, signed on behalf of the Partnership by any Authorized Officer, confirming, as of the date thereof, the matters set forth in paragraph (g) of Section 7 of the Purchase Agreement and such other matters as such parties may reasonably request; (2) opinions, dated the date of Consummation of the Exchange Offer or of effectiveness of the Shelf Registration Statement, as the case may be, of counsel or counsels for the Partnership, covering the matters set forth in paragraphs (c) and (d) of Section 7 of the Purchase Agreement and such other matters as such parties may reasonably request, and in any event including a statement to the effect that such counsel for the Partnership has participated in conferences with officers of the Partnership and other representatives of the Partnership, representatives of the independent public accountants for the Partnership and representatives of and counsel to the Initial Purchasers at which the contents of such Registration Statement and the related Prospectus were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained therein (except as specifically stated in such opinion), on the basis of the foregoing, no facts have come to the attention of such counsel that have caused such counsel to believe that the applicable Registration Statement, at the time such Registration Statement or any post-effective amendment thereto became effective, and, in the case of the Exchange Offer Registration Statement, as of the date of Consummation, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to 14 make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus contained in such Registration Statement as of its date and, in the case of the opinion dated the date of Consummation of the Exchange Offer, as of the date of Consummation, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need make no comment as to the financial statements and related statistical or financial information and schedules included in any Registration Statement contemplated by this Agreement or the related Prospectus); and (3) customary comfort letters, dated as of the date of Consummation of the Exchange Offer or the date of effectiveness of the Shelf Registration Statement, as the case may be, from the Partnership's independent accountants, in the customary form and covering matters of the type customarily covered in comfort letters by underwriters in connection with Underwritten Offerings, and affirming the matters set forth in the comfort letters delivered pursuant to Section 7(e) and (f) of the Purchase Agreement, without exception; (B) set forth in full or incorporate by reference in the underwriting agreement, if any, the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (C) deliver such other documents and certificates as may be reasonably requested by such parties to evidence compliance with clause (A) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Partnership pursuant to this clause (xi), if any. The above shall be done at each closing under such underwriting or similar agreement, as and to the extent required thereunder, and, if at any time the representations and warranties of the Partnership contemplated in clause (A)(1) above cease to be true and correct in any material respect, the Partnership shall so advise the Initial Purchasers and the managing underwriter(s), if any, each selling Holder and each Restricted Broker-Dealer promptly and, if requested by such Persons, shall confirm such advice in writing; (xii) prior to any public offering of Transfer Restricted Securities, cooperate with the selling Holders, the managing underwriter(s), if any, and its counsel in connection with the registration and qualification of the Transfer Restricted Securities under the securities or Blue Sky laws of such jurisdictions in the United States as the selling Holders or managing underwriter(s), if any, may request and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Transfer Restricted Securities covered by the applicable Registration Statement; provided, however, that the Partnership shall not be required to register or qualify as a foreign entity where it is not now so qualified or to take any action that would subject it to the service of process in suits or to taxation, other than as to matters and transactions relating to the Registration Statement, in any jurisdiction where it is not now so subject; 15 (xiii) shall issue, upon the request of any Holder of Senior Notes covered by any Shelf Registration Statement contemplated by this Agreement, New Senior Notes, having an aggregate principal amount equal to the aggregate principal amount of the Senior Notes surrendered to the Partnership by such Holder in exchange therefor or being sold by such Holder; such New Senior Notes to be registered in the name of such Holder or in the name of the purchaser(s) of such Notes, as the case may be; in return, the Senior Notes held by such Holder shall be surrendered to the Partnership for cancellation; (xiv) cooperate with the selling Holders and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Securities to be sold and not bearing any restrictive legends; and enable such Transfer Restricted Securities to be in such denominations and registered in such names as the Holders or the underwriter(s), if any, may request at least two Business Days prior to any sale of Transfer Restricted Securities made by such underwriter(s); (xv) use its reasonable best efforts to cause the disposition of the Transfer Restricted Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter(s), if any, to consummate the disposition of such Transfer Restricted Securities, subject to the proviso contained in clause (xii) above; (xvi) subject to Section 6(c)(i), if any fact or event contemplated by clause 6(c)(iii)(D) above shall exist or have occurred, prepare a supplement or post-effective amendment to the Registration Statement or related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of Transfer Restricted Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading; (xvii) provide a CUSIP number for all Transfer Restricted Securities not later than the effective date of the Registration Statement covering such Transfer Restricted Securities and provide the Trustee under the Indenture with printed certificates for the Transfer Restricted Securities which are in a form eligible for deposit with The Depository Trust Company; (xviii) cooperate and assist in any filings required to be made with the NASD and in the performance of any due diligence investigation by any underwriter (including any "qualified independent underwriter" that is required to be retained in accordance with the rules and regulations of the NASD), and use its reasonable best efforts to cause such Registration Statement to become effective and approved by such governmental agencies or authorities as may be necessary to enable the Holders selling Transfer Restricted Securities to consummate the disposition of such Transfer Restricted Securities; (xix) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its security 16 holders, as soon as practicable, a consolidated earnings statement meeting the requirements of Rule 158 (which need not be audited) for the twelve-month period (A) commencing at the end of any fiscal quarter in which Transfer Restricted Securities are sold to underwriters in a firm or reasonable best efforts Underwritten Offering or (B) if not sold to underwriters in such an offering, beginning with the first month of the Partnership's first fiscal quarter commencing after the effective date of the Registration Statement; (xx) cause the Indenture to be qualified under the TIA not later than the effective date of the first Registration Statement required by this Agreement, and, in connection therewith, cooperate with the Trustee and the Holders of Notes to effect such changes to the Indenture as may be required for such Indenture to be so qualified in accordance with the terms of the TIA; and execute and use its reasonable best efforts to cause the Trustee to execute, all documents that may be required to effect such changes and all other forms and documents required to be filed with the Commission to enable such Indenture to be so qualified in a timely manner; (xxi) cause all Transfer Restricted Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Partnership are then listed if requested by the Holders of a majority in aggregate principal amount of Senior Notes or the managing underwriter(s), if any; and (xxii) promptly provide or make available to the Holders of the Notes, all financial information and reports at the time and in the manner provided for in Section 4.03 of the Indenture. (d) Restrictions on Holders. (i) Each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of the notice from the Partnership of the existence of any fact of the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith discontinue disposition of Transfer Restricted Securities pursuant to the applicable Registration Statement until such Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof, or until it is advised in writing (the "Advice") by the Partnership that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus. If so directed by the Partnership, each Holder will deliver to the Partnership (at the Partnership's expense) all copies, other than permanent file copies then in such Holder's possession, of the Prospectus covering such Transfer Restricted Securities that was current at the time of receipt of such notice. In the event the Partnership shall give any such notice, the time period regarding the effectiveness of such Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(i) or Section 6(c)(iii)(D) hereof to and including the date when each selling Holder covered by such Registration Statement shall have received the copies of the supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof or shall have received the Advice. (ii) The Partnership may require a Holder of Transfer Restricted Securities to be included in a Registration Statement to furnish to the Partnership such information as required 17 by law to be disclosed by such Holder in such Registration Statement, and the Partnership may exclude from such Registration Statement the Transfer Restricted Securities of any Holder who unreasonably fails to furnish such information within a reasonable time after receiving such request. SECTION 7. REGISTRATION EXPENSES All expenses incident to the Partnership's performance of or compliance with this Agreement will be borne by the Partnership, regardless of whether a Registration Statement becomes effective, including, without limitation: (i) all registration and filing fees and expenses (including filings made by any Initial Purchaser or Holder with the NASD (and, if applicable, the fees and expenses of any "qualified independent underwriter") and its counsel that may be required by the rules and regulations of the NASD); (ii) all fees and expenses of compliance with federal securities and state Blue Sky or securities laws; (iii) all expenses of printing (including printing certificates for the New Senior Notes to be issued in the Exchange Offer and printing of Prospectuses); (iv) all fees and disbursements of counsel for the Partnership; (v) all messenger and delivery services and telephone expenses of the Partnership; and (vi) all fees and disbursements of independent certified public accountants of the Partnership (including the expenses of any special audit and comfort letters required by or incident to such performance). The Partnership will, in any event, bear its internal expenses (including, without limitation, all salaries and expenses of any of the Partnership's officers and employees performing legal or accounting duties), the expenses of any annual audit and the fees and expenses of any Person, including special experts, retained by the Partnership. SECTION 8. INDEMNIFICATION (a) The Partnership shall indemnify and hold harmless each Holder, its directors, officers and employees and each Person, if any, who controls such Holder within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act, from and against any and all losses, claims, damages, liabilities, judgments and actions, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability, judgment or action relating to purchases and sales of Notes), to which that Holder, its directors, officers, employees or controlling Persons may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability, judgment or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Registration Statement, Preliminary Prospectus or Prospectus or in any amendment or supplement thereto or (B) in any Blue Sky application or other document prepared or executed by the Partnership (or based upon any written information furnished by the Partnership) specifically for the purpose of qualifying any or all of the Notes under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a "Blue Sky Application") or (ii) the omission or alleged omission to state in any Registration Statement, Preliminary Prospectus or Prospectus, or in any amendment or supplement thereto, or in any Blue Sky Application any material fact required to be stated therein or necessary to make the statements therein not misleading, and shall reimburse such Holder and each director, officer, employee or controlling Person promptly upon demand for any legal or 18 other expenses reasonably incurred by such Holder, director, officer, employee or controlling Person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability, judgment or action as such expenses are incurred; provided, however, that the Partnership shall not be liable in any such case to the extent that any such loss, claim, damage, liability, judgment or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any Registration Statement, Preliminary Prospectus or Prospectus, or in any such amendment or supplement or in any Blue Sky Application in reliance upon and in conformity with written information furnished to the Partnership by or on behalf of such Holder specifically for inclusion therein. (b) Each Holder, severally and not jointly, shall indemnify and hold harmless the Partnership, the Partnership Policy Committee of the Partnership, the Audit Committee of the Partnership, the employees and officers of the Partnership, the General Partners, the employees and officers of the General Partners, and each Person, if any, who controls the Partnership within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "Partnership Indemnitees"), from and against any and all losses, claims, damages, liabilities, judgments or actions, joint or several, or any action in respect thereof, to which the Partnership Indemnitees may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability, judgment or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, Preliminary Prospectus or Prospectus or in any amendment or supplement thereto or (ii) the omission or alleged omission to state in any Registration Statement, Preliminary Prospectus or Prospectus, or in any amendment or supplement thereto, or in any Blue Sky Memorandum any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Partnership by or on behalf of such Holder specifically for inclusion therein and described in Section 8(e), and shall reimburse the Partnership Indemnitee or controlling Person for any legal or other expenses reasonably incurred by the Partnership Indemnitee in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability, judgment or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which any Holder may otherwise have to the Partnership Indemnitees. (c) Promptly after receipt by any indemnified party under this Section 8 of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have under this Section 8 except to the extent it has been materially prejudiced by such failure and, provided further, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise than under this Section 8. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel satisfactory to the indemnified party and the payment of all fees and expenses of such counsel shall be the responsibility of the indemnifying 19 party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation, provided, however, that the indemnified party shall have the right to employ separate counsel to represent all indemnified parties who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the indemnified parties against the indemnifying parties under this Section 8 if, (i) the employment of such counsel shall have been specifically authorized in writing by the indemnifying party, (ii) the indemnifying party shall have failed to assume the defense of such action or employ counsel reasonably satisfactory to the indemnified party or (iii) counsel for any of the indemnified parties shall have reasonably concluded that there may be defenses available to the indemnified parties that are in addition to or in conflict with those available to the indemnifying party. In any case, the indemnifying party shall not, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) of all indemnified parties, and all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by BOA, in the case of the parties indemnified pursuant to Section 8(a) and by the Partnership, in the case of parties indemnified pursuant to Section 8(b). No indemnifying party shall (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding, or (ii) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment. (d) If the indemnification provided for in this Section 8 shall for any reason be unavailable or insufficient to hold harmless an indemnified party under Section 8(a) or 8(b) in respect of any loss, claim, damage, liability, judgment or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage, liability, judgment or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Partnership, on the one hand, and the Holders, on the other, from the offering of the Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Partnership, on the one hand, and the Holders, on the other, with respect to the statements or omissions which resulted in such loss, claim, damage, liability, judgment or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Partnership, on the one hand, and the Holders, on the other, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the 20 Notes purchased under the Purchase Agreement (before deducting expenses) received by the Partnership as set forth in the table on the cover page of the Memorandum, on the one hand, and the total net proceeds received by such Holder upon its resale of Notes less the amount paid by such Holder for such Notes, on the other hand, bear to the total sum of such amounts. The 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 or such Holder, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Partnership and the Holders agree that it would not be just and equitable if contributions pursuant to this Section 8 were to be determined by pro rata allocation or by any other method of allocation which 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, damage, liability, judgment or action in respect thereof, referred to above in this Section 8 shall be deemed to include, for purposes of this Section 8(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 8(d), no Holder, and none of its directors, officers, employees or controlling Persons, shall be required to contribute, in the aggregate, any amount in excess of the amount by which the total net proceeds received by such Holder upon its resale of Notes exceeds the sum of the amount paid by such Holder for such Notes and the amount of any damages which such Holder has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The Holders' obligations to contribute as provided in this Section 8(d) are several in proportion to the respective principal amount of Notes held by each of the Holders hereunder and not joint. (e) The Holders severally confirm, and the Partnership acknowledges, that the statements with respect to the offering of the Notes set forth in the bottom paragraph on the cover page of, and the disclosure in the second, fifth and seventh through tenth paragraphs and the last sentence of the fourth paragraph under the caption "Plan of Distribution" in the Memorandum are correct and constitute the only information furnished in writing to the Partnership by or on behalf of the Holders specifically for inclusion in the Memorandum. SECTION 9. RULE 144A The Partnership hereby agrees with each Holder, for so long as any Transfer Restricted Securities remain outstanding and during any period in which the Partnership is not subject to Section 13 or 15(d) of the Exchange Act, to make available to any Holder or beneficial owner of Transfer Restricted Securities in connection with any sale thereof and any prospective purchaser of such Transfer Restricted Securities from such Holder or beneficial owner, the information required by Rule 144A(d)(4) under the Securities Act in order to permit resales of such Transfer Restricted Securities pursuant to Rule 144A. 21 SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATION No Holder may participate in any Underwritten Registration hereunder unless such Holder (a) agrees to sell such Holder's Transfer Restricted Securities on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and (b) completes and executes all reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up letters and other documents required under the terms of such underwriting arrangements. SECTION 11. SELECTION OF UNDERWRITERS For any Underwritten Offering, the investment banker or investment bankers and manager or managers that will administer such offering will be selected by the Holders of a majority in aggregate principal amount of the Transfer Restricted Securities included in such offering; provided, that such investment bankers and managers must be reasonably satisfactory to the Partnership. Such investment bankers and managers are referred to herein as the "managing underwriters." SECTION 12. MISCELLANEOUS (a) Remedies. Each Holder, in addition to being entitled to exercise all rights provided herein, in the Indenture, the Purchase Agreement or granted by law, including recovery of liquidated or other damages, will be entitled to specific performance of its rights under this Agreement. The Partnership agrees that monetary damages (including the Liquidated Damages contemplated hereby) would not be adequate compensation for any loss incurred by reason of a breach by them of the provisions of this Agreement and hereby agree to waive the defense in any action for specific performance that a remedy at law would be adequate. (b) No Inconsistent Agreements. The Partnership will not on or after the date of this Agreement, enter into any agreement with respect to its securities that is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. The Partnership is not currently bound by any agreement granting registration rights with respect to its securities that conflicts with the registration rights set forth herein. (c) Adjustments Affecting the Notes. The Partnership will not take any action, or permit any change to occur, with respect to the Notes that would materially and adversely affect the ability of the Holders to Consummate any Exchange Offer. (d) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to or departures from the provisions hereof may not be given unless (i) in the case of Section 5 hereof and this Section 12(d), the Holders of all outstanding Transfer Restricted Securities and (ii) in the case of all other provisions hereof, the Partnership has obtained the written consent of Holders of a majority of the outstanding principal amount of Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or consent to departure from the provisions hereof that relates exclusively to the rights of Holders whose securities are being tendered pursuant to the Exchange Offer and that does not affect directly or indirectly the rights of other Holders whose securities 22 are not being tendered pursuant to such Exchange Offer may be given by the Holders of a majority of the outstanding principal amount of Transfer Restricted Securities being tendered or registered. (e) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, first-class mail (registered or certified, return receipt requested), telex, telecopier, or air courier guaranteeing overnight delivery: (i) if to a Holder, at the address set forth on the records of the Registrar under the Indenture, with a copy to the Registrar under the Indenture; and With a copy to: Banc of America Securities, LLC 100 North Tryon Street Charlotte, North Carolina 28255 Attention: Syndicate Operations Telecopy No.: (704) 388-9212 (ii) if to the Initial Purchasers, to the Initial Purchasers' address specified in Section 12(a) of the Purchase Agreement. (iii) if to the Partnership: Northern Border Partners, L.P. c/o Northern Plains Natural Gas Company 1111 South 103rd Street Omaha, Nebraska 68124-1000 Telecopy No.: (402) 398-7871 Attention: Director of Finance All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if telecopied; and on the next Business Day, if timely delivered to an air courier guaranteeing overnight delivery. Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee at the address specified in the Indenture. (f) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties, including without limitation and without the need for an express assignment, subsequent Holders of Transfer Restricted Securities; provided, however, that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Transfer Restricted Securities in violation of the terms hereof or 23 of the Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire Transfer Restricted Securities in any manner, whether by operation of law or otherwise, such Transfer Restricted Securities shall be held subject to all of the terms of this Agreement, and by owning and holding such Transfer Restricted Securities such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement, including the restrictions on resale set forth in this Agreement and, if applicable, the Purchase Agreement, and such Person shall be entitled to receive the benefits hereof. (g) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. (h) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK. (j) Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable by a court of competent jurisdiction, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby. (k) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein with respect to the registration rights granted by the Partnership with respect to the Transfer Restricted Securities. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. (l) No Personal Liability. None of the members of the Partnership Policy Committee, the Partnership Audit Committee or the General Partners or the General Partners' directors, officers, employees, partners, incorporators or stockholders, if any, shall have any liability for any of the Partnership's obligations under the notes or the indenture or hereunder or for any claim based on, in respect of, or by reason of, such obligations or their creation. 24 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. NORTHERN BORDER PARTNERS, L.P. By: /s/ Jerry L. Peters ------------------------------------- Name: Jerry L. Peters Title: Chief Financial & Accounting Officer NORTHERN BORDER INTERMEDIATE LIMITED PARTNERSHIP By: /s/ Jerry L. Peters ------------------------------------- Name: Jerry L. Peters Title: Chief Financial & Accounting Officer BANC OF AMERICA SECURITIES LLC BANC ONE CAPITAL MARKETS, INC. SUNTRUST EQUITABLE SECURITIES By: BANC OF AMERICA SECURITIES LLC By: /s/ Lily Chang ------------------------------ Name: Lily Chang Title: Principal EX-5.1 4 h80326ex5-1.txt OPINION OF VINSON & ELKINS L.L.P. 1 EXHIBIT 5.1 September 20, 2000 Northern Border Partners, L.P. Northern Border Intermediate Limited Partnership 1400 Smith Street Houston, Texas 77002 Ladies and Gentlemen: We have acted as counsel for Northern Border Partners, L.P., a Delaware limited partnership (the "Partnership"), in connection with the filing by the Partnership and Northern Border Intermediate Limited Partnership, a Delaware limited partnership (the "Intermediate Partnership"), with the Securities and Exchange Commission of a Registration Statement on Form S-4 (the "Registration Statement") with respect to (i) the issuance by the Partnership of up to $250,000,000 aggregate amount of its 8 7/8% Senior Notes due 2010, Series A (the "Exchange Notes"), registered pursuant to the Registration Statement under the Securities Act of 1933, as amended (the "Securities Act"), in exchange for up to $250,000,000 aggregate amount of the Partnership's outstanding 8 7/8% Senior Notes (the "Outstanding Notes") and (ii) the Intermediate Partnership's guarantee (the "Exchange Guarantee"), which guarantees the payment of the Exchange Notes on a senior unsecured basis, also registered pursuant to the Registration Statement under the Securities Act. The Exchange Notes are to be issued pursuant to an Indenture dated as of June 2, 2000, as amended by the First Supplemental Indenture dated as of September 14, 2000 (collectively, the "Indenture") between the Partnership, the Intermediate Partnership and Bank One Trust Company, N.A., as Trustee. Before rendering our opinions hereinafter set forth, we examined such certificates, instruments and records of the Partnership and the Intermediate Partnership, including the Indenture and the Exchange Guarantee, and we reviewed such questions of law, as we considered appropriate. Based upon the foregoing, we are of the opinion that: (i) When the Registration Statement has become effective under the Securities Act and the Exchange Notes have been duly executed and authenticated in accordance with the Indenture and issued as contemplated in the Registration Statement, the Exchange Notes will constitute valid and legally binding obligations of the Partnership, subject to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equitable principles. 2 (ii) When the Registration Statement has become effective under the Securities Act and the Exchange Notes have been duly executed and authenticated in accordance with the Indenture and issued as contemplated in the Registration Statement, the Exchange Guarantee will constitute a valid and legally binding obligation of the Intermediate Partnership, subject to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and to general equitable principles. (iii) We hereby confirm that the discussion and the legal conclusions set forth in the Registration Statement under the heading "United States Federal Tax Considerations" are accurate and complete in all material respects and constitute our opinion, which is subject to the assumptions and qualifications set forth therein, as to the material tax consequences of the purchase, ownership and disposition of the Outstanding Notes and the Exchange Notes. We hereby consent to the statements made with respect to us under the caption "United States Federal Tax Considerations" and "Legal Matters" in the prospectus contained in the Registration Statement and to the filing of this opinion as an exhibit to the Registration Statement. By giving such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission issued thereunder. Very truly yours, VINSON & ELKINS L.L.P. EX-10.23 5 h80326ex10-23.txt FIRST AMENDMENT TO 364-DAY CREDIT AGREEMENT 1 EXHIBIT 10.23 FIRST AMENDMENT TO 364-DAY CREDIT AGREEMENT THIS FIRST AMENDMENT TO 364-DAY CREDIT AGREEMENT (this "AMENDMENT") is effective as of June 28, 2000, among NORTHERN BORDER PARTNERS, L.P., a Delaware limited partnership ("BORROWER"), NORTHERN BORDER INTERMEDIATE LIMITED PARTNERSHIP, a Delaware limited partnership ("INTERMEDIATE PARTNERSHIP"), BANK OF AMERICA, N.A., as Administrative Agent (the "ADMINISTRATIVE AGENT") for the Lenders under the Credit Agreement hereinafter referenced, and the Lenders (as defined in the Credit Agreement) party hereto. Reference is made to the 364-Day Credit Agreement dated as of June 28, 2000 (the "CREDIT AGREEMENT") among Borrower, Administrative Agent, SunTrust Bank as Syndication Agent, Bank One, NA, as Documentation Agent, and the Lenders party thereto. Unless otherwise defined in this Amendment, capitalized terms used herein shall have the meaning set forth in the Credit Agreement; all Section and Schedule references herein are to Sections and Schedules in the Credit Agreement; and all Paragraph references herein are to Paragraphs in this Amendment. RECITAL This First Amendment is entered into to correct Section 10.1 of the Credit Agreement. Accordingly, for adequate and sufficient consideration, the parties hereto agree, as follows: PARAGRAPH 1 AMENDMENT. 1.1 ADDITIONAL DEFINITION. (c) The following definition shall be alphabetically inserted in SECTION 1.1 to read as follows: SENIOR NOTES has the meaning set forth in Section 11.7(a). 1.2 DEBT AND GUARANTIES. SECTION 10.1 is amended by adding the word "and" to the end of SECTION 10.1(b)(vii) and adding the following new SECTION 10.1(b)(viii): (viii) The guaranty by Intermediate Partnership of Borrower's obligations under the Senior Notes; PARAGRAPH 2. ACKNOWLEDGMENT AND RATIFICATION. As a material inducement to Administrative Agent and the Lenders to execute and deliver this Amendment, Borrower and Guarantor each (a) consent to the agreements in this Amendment and (b) agree and acknowledge that the execution, delivery, and performance of this Amendment shall in no way release, diminish, impair, reduce, or otherwise affect the respective obligations of Borrower or Guarantor under the Loan Documents to which it is a party, which Loan Documents shall remain in full force and effect, and all guaranties and Rights thereunder are hereby ratified and confirmed. FIRST AMENDMENT 364-DAY CREDIT AGREEMENT EFFECTIVE 6/28/00 2 PARAGRAPH 3 REPRESENTATIONS. As a material inducement to Lenders to execute and deliver this Amendment, Borrower and Guarantor each represent and warrant to Lenders (with the knowledge and intent that Lenders are relying upon the same in entering into this Amendment) that as of the Effective Date of this Amendment and as of the date of execution of this Amendment, (a) all representations and warranties in the Loan Documents are true and correct in all material respects as though made on the date hereof, except to the extent that any of them speak to a different specific date, and (b) no Potential Default or Default exists. PARAGRAPH 4 EXPENSES. Borrower shall pay all costs, fees, and expenses paid or incurred by Administrative Agent incident to this Amendment, including, without limitation, the reasonable fees and expenses of Administrative Agent's counsel in connection with the negotiation, preparation, delivery, and execution of this Amendment and any related documents. PARAGRAPH 5 MISCELLANEOUS. This Amendment is a "Loan Document" referred to in the Credit Agreement. The provisions relating to Loan Documents in SECTION 14 of the Credit Agreement are incorporated in this Amendment by reference. Unless stated otherwise (a) the singular number includes the plural and vice versa and words of any gender include each other gender, in each case, as appropriate, (b) headings and captions may not be construed in interpreting provisions, (c) this Amendment must be construed, and its performance enforced, under New York law, (d) if any part of this Amendment is for any reason found to be unenforceable, all other portions of it nevertheless remain enforceable, and (e) this Amendment may be executed in any number of counterparts with the same effect as if all signatories had signed the same document, and all of those counterparts must be construed together to constitute the same document. Paragraph 6 ENTIRE AGREEMENT. THIS AMENDMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES ABOUT THE SUBJECT MATTER OF THIS AMENDMENT ANY MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. PARAGRAPH 7 PARTIES. This Amendment binds and inures to the benefit of Borrower, Guarantor, Administrative Agent, Lenders, and their respective successors and assigns. The parties hereto have executed this Amendment in multiple counterparts to be effective as of the Effective Date. REMAINDER OF PAGE INTENTIONALLY BLANK. SIGNATURE PAGES TO FOLLOW. FIRST AMENDMENT 364-DAY CREDIT AGREEMENT EFFECTIVE 6/28/00 2 3 NORTHERN BORDER PARTNERS, L.P. By: /s/ JERRY L. PETERS --------------------------------------- Name: Jerry L. Peters Title: Chief Financial & Accounting Officer FIRST AMENDMENT 364-DAY CREDIT AGREEMENT EFFECTIVE 6/28/00 4 NORTHERN BORDER INTERMEDIATE LIMITED PARTNERSHIP, Guarantor By: /s/ JERRY L. PETERS ---------------------------------------- Name: Jerry L. Peters Title: Chief Financial & Accounting Officer FIRST AMENDMENT 364-DAY CREDIT AGREEMENT EFFECTIVE 6/28/00 5 BANK OF AMERICA, N.A. as Administrative Agent and as a Lender By: /s/ DENISE A. SMITH --------------------------------------- Denise A. Smith Managing Director FIRST AMENDMENT 364-DAY CREDIT AGREEMENT EFFECTIVE 6/28/00 6 SUNTRUST BANK By: /s/ STEVEN J. NEWBY -------------------- Name: Steven J. Newby Title: Vice President FIRST AMENDMENT 364-DAY CREDIT AGREEMENT EFFECTIVE 6/28/00 7 BANK ONE, N.A. By: /s/ JEANIE HARMAN ------------------------ Name: Jeanie Harman Title: First Vice President FIRST AMENDMENT 364-DAY CREDIT AGREEMENT EFFECTIVE 6/28/00 8 ROYAL BANK OF CANADA By: /s/ DAVID A. MCCLUSKEY ----------------------- Name: DAVID A. MCCLUSKEY Title: MANAGER FIRST AMENDMENT 364-DAY CREDIT AGREEMENT EFFECTIVE 6/28/00 9 THE FUJI BANK, LIMITED By: /s/ JACQUES AZAGURY ----------------------------------- Name: Jacques Azagury Title: Senior Vice President & Manager FIRST AMENDMENT 364-DAY CREDIT AGREEMENT EFFECTIVE 6/28/00 10 FIRST NATIONAL BANK OF OMAHA By: /s/ JEFF SIMS ------------------ Name: Jeff Sims Title: Vice President FIRST AMENDMENT 364-DAY CREDIT AGREEMENT EFFECTIVE 6/28/00 EX-10.25 6 h80326ex10-25.txt FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT 1 EXHIBIT 10.25 FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "AMENDMENT") is effective as of June 28, 2000, among NORTHERN BORDER PARTNERS, L.P., a Delaware limited partnership ("BORROWER"), NORTHERN BORDER INTERMEDIATE LIMITED PARTNERSHIP, a Delaware limited partnership ("INTERMEDIATE PARTNERSHIP"), BANK OF AMERICA, N.A., as Administrative Agent (the "ADMINISTRATIVE AGENT") for the Lenders under the Credit Agreement hereinafter referenced, and the Lenders (as defined in the Credit Agreement) party hereto. Reference is made to the Revolving Credit Agreement dated as of June 28, 2000 (the "CREDIT AGREEMENT") among Borrower, Administrative Agent, SunTrust Bank as Syndication Agent, Bank One, NA, as Documentation Agent, and the Lenders party thereto. Unless otherwise defined in this Amendment, capitalized terms used herein shall have the meaning set forth in the Credit Agreement; all Section and Schedule references herein are to Sections and Schedules in the Credit Agreement; and all Paragraph references herein are to Paragraphs in this Amendment. RECITAL This First Amendment is entered into to correct Section 10.1 of the Credit Agreement. Accordingly, for adequate and sufficient consideration, the parties hereto agree, as follows: PARAGRAPH 1 AMENDMENT. 1.1 ADDITIONAL DEFINITION. (c) The following definition shall be alphabetically inserted in SECTION 1.1 to read as follows: SENIOR NOTES has the meaning set forth in Section 11.7(a). 1.2 DEBT AND GUARANTIES. SECTION 10.1 is amended by adding the word "and" to the end of SECTION 10.1(b)(vii) and adding the following new SECTION 10.1(b)(viii): (viii) The guaranty by Intermediate Partnership of Borrower's obligations under the Senior Notes; PARAGRAPH 2. ACKNOWLEDGMENT AND RATIFICATION. As a material inducement to Administrative Agent and the Lenders to execute and deliver this Amendment, Borrower and Guarantor each (a) consent to the agreements in this Amendment and (b) agree and acknowledge that the execution, delivery, and performance of this Amendment shall in no way release, diminish, impair, reduce, or otherwise affect the respective obligations of Borrower or Guarantor under the Loan Documents to which it is a party, which Loan Documents shall remain in full force and effect, and all guaranties and Rights thereunder are hereby ratified and confirmed. FIRST AMENDMENT REVOLVING CREDIT AGREEMENT EFFECTIVE 6/28/00 2 PARAGRAPH 3 REPRESENTATIONS. As a material inducement to Lenders to execute and deliver this Amendment, Borrower and Guarantor each represent and warrant to Lenders (with knowledge and intent that Lenders are relying upon the same in entering into this Amendment) that as of the Effective Date of this Amendment and as of the date of execution of this Amendment, (a) all representations and warranties in the Loan Documents are true and correct in all material respects as though made on the date hereof, except to the extent that any of them speak to a different specific date, and (b) no Potential Default or Default exists. PARAGRAPH 4 EXPENSES. Borrower shall pay all costs, fees, and expenses paid or incurred by Administrative Agent incident to this Amendment, including, without limitation, the reasonable fees and expenses of Administrative Agent's counsel in connection with the negotiation, preparation, delivery, and execution of this Amendment and any related documents. PARAGRAPH 5 MISCELLANEOUS. This Amendment is a "Loan Document" referred to in the Credit Agreement. The provisions relating to Loan Documents in SECTION 14 of the Credit Agreement are incorporated in this Amendment by reference. Unless stated otherwise (a) the singular number includes the plural and vice versa and words of any gender include each other gender, in each case, as appropriate, (b) headings and captions may not be construed in interpreting provisions, (c) this Amendment must be construed, and its performance enforced, under New York law, (d) if any part of this Amendment is for any reason found to be unenforceable, all other portions of it nevertheless remain enforceable, and (e) this Amendment may be executed in any number of counterparts with the same effect as if all signatories had signed the same document, and all of those counterparts must be construed together to constitute the same document. Paragraph 6 ENTIRE AGREEMENT. THIS AMENDMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES ABOUT THE SUBJECT MATTER OF THIS AMENDMENT ANY MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. PARAGRAPH 7 PARTIES. This Amendment binds and inures to the benefit of Borrower, Guarantor, Administrative Agent, Leaders, and their respective successors and assigns. The parties hereto have executed this Amendment in multiple counterparts to be effective as of the Effective Date. REMAINDER OF PAGE INTENTIONALLY BLANK. SIGNATURE PAGES TO FOLLOW. FIRST AMENDMENT REVOLVING CREDIT AGREEMENT EFFECTIVE 6/28/00 2 3 NORTHERN BORDER PARTNERS, LP. By: /s/ JERRY L. PETERS ------------------- Name: Jerry L. Peters Title: Chief Financial & Accounting Officer FIRST AMENDMENT REVOLVING CREDIT AGREEMENT EFFECTIVE 6/28/00 4 NORTHERN BORDER INTERMEDIATE LIMITED PARTNERSHIP, Guarantor By: /s/ JERRY L. PETERS ----------------------------------- Name: Jerry L. Peters Title: Chief Financial & Accounting Officer FIRST AMENDMENT REVOLVING CREDIT AGREEMENT EFFECTIVE 6/28/00 5 BANK OF AMERICA, N.A., as Administrative Agent and as a Lender By: /s/ DENISE A. SMITH -------------------- Denise A. Smith Managing Director FIRST AMENDMENT REVOLVING CREDIT AGREEMENT EFFECTIVE 6/28/00 6 SUNTRUST BANK By: /s/ STEVEN J. NEWBY --------------------- Name: Steven J. Newby Title: Vice President FIRST AMENDMENT REVOLVING CREDIT AGREEMENT EFFECTIVE 6/28/00 7 BANK ONE, NA By: /s/ JEANIE HARMAN --------------------------- Name: Jeanie Harman Title: First Vice President FIRST AMENDMENT REVOLVING CREDIT AGREEMENT EFFECTIVE 6/28/00 8 ROYAL BANK OF CANADA By: /s/ DAVID A. MCCLUSKEY ------------------------ Name: DAVID A. MCCLUSKEY Title: MANAGER FIRST AMENDMENT REVOLVING CREDIT AGREEMENT EFFECTIVE 6/28/00 9 THE FUJI BANK, LIMITED By: /s/ JACQUES AZAGURY -------------------------------------- Name: JACQUES AZAGURY Title: SENIOR VICE PRESIDENT & MANAGER FIRST AMENDMENT REVOLVING CREDIT AGREEMENT EFFECTIVE 6/28/00 10 FIRST NATIONAL BANK OF OMAHA By: /s/ JEFF SIMS ------------------ Name: Jeff Sims Title: Vice President FIRST AMENDMENT REVOLVING CREDIT AGREEMENT EFFECTIVE 6/28/00 EX-12.1 7 h80326ex12-1.txt STATEMENT RE: COMPUTATION OF RATIOS 1 EXHIBIT 12.1 STATEMENT RE COMPUTATION OF RATIOS
NORTHERN BORDER PARTNERS, L.P. Six months RATIO OF EARNINGS TO FIXED CHARGES ended (in thousands) June 30, Year ended December 31, ---------- ------------------------------------------------------------ 2000 1999 1998 1997 1996 1995 FIXED CHARGES: Interest expensed and capitalized $ 38,052 $ 67,807 $ 49,923 $ 34,520 $ 33,117 $ 35,205 Estimate of interest within rental expense 200 402 397 393 404 397 -------- -------- -------- -------- -------- -------- Total fixed charges 38,252 68,209 50,320 34,913 33,521 35,602 EARNINGS: Pretax income from continuing operations 36,008 81,003 68,020 53,024 50,285 51,803 Minority interest in net income 17,447 35,568 30,069 22,253 22,153 22,360 Fixed charges, net of capitalized interest 38,252 68,209 50,320 34,913 33,521 35,602 -------- -------- -------- -------- -------- -------- Total earnings 91,707 184,780 148,409 110,190 105,959 109,765 RATIO OF EARNINGS TO FIXED CHARGES 2.40 2.71 2.95 3.16 3.16 3.08 ======== ======== ======== ======== ======== ========
EX-23.1 8 h80326ex23-1.txt CONSENT OF ARTHUR ANDERSEN LLP 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement on Form S-4 of our reports, dated January 20, 2000, included in Northern Border Partners, L.P.'s Annual Report on Form 10-K for the year ended December 31, 1999, and to all references to our Firm included in or made a part of this Registration Statement on Form S-4. ARTHUR ANDERSEN LLP Omaha, Nebraska, September 15, 2000 EX-25.1 9 h80326ex25-1.txt STATEMENT OF ELIGIBILITY 1 EXHIBIT 25.1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)___ BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION (EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER) A NATIONAL BANKING ASSOCIATION 31-0838515 (I.R.S. EMPLOYER IDENTIFICATION NUMBER) 100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION 120 SOUTH LASALLE STREET CHICAGO, ILLINOIS 60603 ATTN: JOHN R. PRENDIVILLE, SENIOR COUNSEL, (312) 661-5223 (NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE) NORTHERN BORDER PARTNERS, L.P. (EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER) DELAWARE 93-1120873 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER) 1400 SMITH STREET HOUSTON, TEXAS 77002 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) DEBT SECURITIES (TITLE OF INDENTURE SECURITIES) 2 ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE: (a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT. Comptroller of Currency, Washington, D.C.; Federal Deposit Insurance Corporation, Washington, D.C.; The Board of Governors of the Federal Reserve System, Washington D.C. (b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS. The trustee is authorized to exercise corporate trust powers. ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION. No such affiliation exists with the trustee. ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF ELIGIBILITY. 1. A copy of the articles of association of the trustee now in effect.* 2. A copy of the certificate of authority of the trustee to commence business.* 3. A copy of the authorization of the trustee to exercise corporate trust powers.* 4. A copy of the existing by-laws of the trustee.* 5. Not Applicable. 6. The consent of the trustee required by Section 321(b) of the Act. 7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. 8. Not Applicable. 9. Not Applicable. 3 Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bank One Trust Company, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago and State of Illinois, on the 7th day of August, 2000. BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION, TRUSTEE BY /s/ JOHN R. PRENDIVILLE JOHN R. PRENDIVILLE VICE PRESIDENT * Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits bearing identical numbers in Item 16 of the Form T-1 of Bank One Trust Company, National Association, filed as Exhibit 25 to the Registration Statement on Form S-4 of U S WEST Communications, Inc., filed with the Securities and Exchange Commission on March 24, 2000 (Registration No. 333-32124). 4 EXHIBIT 6 THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(b) OF THE ACT August 7, 2000 Securities and Exchange Commission Washington, D.C. 20549 Ladies and Gentlemen: In connection with the qualification of an indenture between Northern Border Partners, L.P. and Bank One Trust Company, National Association, as Trustee, the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor. Very truly yours, BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION BY: /s/ JOHN R. PRENDIVILLE JOHN R. PRENDIVILLE SENIOR COUNSEL 5 EXHIBIT 7 Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 03/31/00 State #: 391581 FFIEC 032 Address: 100 Broad Street Vendor ID: D Cert #: 21377 Page RC-1 City, State Zip: Columbus, OH 43271 Transit #: 04400003
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 2000 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding of the last business day of the quarter. SCHEDULE RC--BALANCE SHEET
DOLLAR AMOUNTS IN THOUSANDS RCON BIL MIL THOU C300 ASSETS ---- ------------ ---- 1. Cash and balances due from depository institutions (from Schedule RC-A): RCON ---- a. Noninterest-bearing balances and currency and coin(1)........... 0081 48,450 1.a b. Interest-bearing balances(2).................................... 0071 17,750 1.b 2. Securities a. Held-to-maturity securities(from Schedule RC-B, column A)....... 1754 0 2.a b. Available-for-sale securities (from Schedule RC-B, column D).... 1773 5,714 2.b 3. Federal funds sold and securities purchased under agreements to resell............................................................. 1350 396,644 3. 4. Loans and lease financing receivables: RCON a. Loans and leases, net of unearned income (from Schedule ---- RC-C)........................................................... 2122 87,817 4.a b. LESS: Allowance for loan and lease losses....................... 3123 10 4.b c. LESS: Allocated transfer risk reserve........................... 3128 0 4.c d. Loans and leases, net of unearned income, allowance, and RCON reserve (item 4.a minus 4.b and 4.c)............................ ----- 2125 87,807 4.d 5. Trading assets (from Schedule RD-D)................................ 3545 0 5. 6. Premises and fixed assets (including capitalized leases)........... 2145 25,200 6. 7. Other real estate owned (from Schedule RC-M)....................... 2150 0 7. 8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M)..................................... 2130 0 8. 9. Customers' liability to this bank on acceptances outstanding....... 2155 0 9. 10. Intangible assets (from Schedule RC-M)............................. 2143 26,345 10. 11. Other assets (from Schedule RC-F).................................. 2160 176,297 11. 12. Total assets (sum of items 1 through 11)........................... 2170 784,207 12.
(1) Includes cash items in process of collection and unposted debits. (2) Includes time certificates of deposit not held for trading. 6 Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 03/31/00 State #: 391581 FFIEC 032 Address: 100 East Broad Street Vendor ID: D Cert #: 21377 Page RC-2 City, State Zip: Columbus, OH 43271 Transit #: 04400003
SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS IN THOUSANDS LIABILITIES 13. Deposits: RCON a. In domestic offices (sum of totals of columns A and C ---- from Schedule RC-E, part 1)...................................... 2200 567,764 13.a (1) Noninterest-bearing(1)....................................... 6631 506,455 13.a1 (2) Interest-bearing............................................. 6636 61,309 13.a2 b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, part II)............................... (1) Noninterest bearing.......................................... (2) Interest-bearing............................................. 14. Federal funds purchased and securities sold under agreements to repurchase: RCFD 2800 0 14 15. a. Demand notes issued to the U.S. Treasury......................... RCON 2840 0 15.a b. Trading Liabilities(from Schedule RC-D).......................... RCFD 3548 0 15.b RCON 16. Other borrowed money: ---- a. With original maturity of one year or less....................... 2332 0 16.a b. With original maturity of more than one year.................... A547 0 16.b c. With original maturity of more than three years ................. A548 0 16.c 17. Not applicable...................................................... 18. Bank's liability on acceptance executed and outstanding............. 2920 0 18. 19. Subordinated notes and debentures................................... 3200 0 19. 20. Other liabilities (from Schedule RC-G).............................. 2930 83,885 20. 21. Total liabilities (sum of items 13 through 20)...................... 2948 651,649 21. 22. Not applicable EQUITY CAPITAL 23. Perpetual preferred stock and related surplus....................... 3838 0 23. 24. Common stock........................................................ 3230 800 24. 25. Surplus (exclude all surplus related to preferred stock)............ 3839 45,157 25. 26. a. Undivided profits and capital reserves........................... 3632 86,585 26.a b. Net unrealized holding gains (losses) on available-for-sale securities....................................................... 8434 16 26.b c. Accumulated net gains (losses) on cash flow hedges .............. 4336 0 26.c 27. Cumulative foreign currency translation adjustments................. 28. Total equity capital (sum of items 23 through 27)................... 3210 132,558 28. 29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21, 22, and 28)............................... 3300 784,207 29.
Memorandum To be reported only with the March Report of Condition. 1. Indicate in the box at the right the number of the statement below that best describes the most Number comprehensive level of auditing work performed for the bank by independent external N/A auditors as of any date during 1996.................................RCFD 6724 M.1. 1 - Independent audit of the bank conducted in accordance 4.- Directors' examination of the bank performed by other with generally accepted auditing standards by a certified external auditors (may be required by state chartering public accounting firm which submits a report on the bank authority) 2 - Independent audit of the bank's parent holding company 5 - Review of the bank's financial statements by external conducted in accordance with generally accepted auditing auditors standards by a certified public accounting firm which 6 - Compilation of the bank's financial statements by external submits a report on the consolidated holding company auditors (but not on the bank separately) 7 - Other audit procedures (excluding tax preparation work) 3 - Directors' examination of the bank conducted in 8 - No external audit work accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority)
(1) Includes total demand deposits and noninterest-bearing time and savings deposits. EX-25.2 10 h80326ex25-2.txt STATEMENT OF ELIGIBILITY 1 EXHIBIT 25.2 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)___ BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION (EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER) A NATIONAL BANKING ASSOCIATION 31-0838515 (I.R.S. EMPLOYER IDENTIFICATION NUMBER) 100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION 120 SOUTH LASALLE STREET CHICAGO, ILLINOIS 60603 ATTN: JOHN R. PRENDIVILLE, SENIOR COUNSEL, (312) 661-5223 (NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE) NORTHERN BORDER INTERMEDIATE LIMITED PARTNERSHIP (EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER) DELAWARE 93-1120695 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER) 1400 SMITH STREET HOUSTON, TEXAS 77002 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) GUARANTEE OF DEBT SECURITIES OF NORTHERN BORDER PARTNERS, L.P. (TITLE OF INDENTURE SECURITIES) 2 ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE: (a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT. Comptroller of Currency, Washington, D.C.; Federal Deposit Insurance Corporation, Washington, D.C.; The Board of Governors of the Federal Reserve System, Washington D.C. (b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS. The trustee is authorized to exercise corporate trust powers. ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION. No such affiliation exists with the trustee. ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF ELIGIBILITY. 1. A copy of the articles of association of the trustee now in effect.* 2. A copy of the certificate of authority of the trustee to commence business.* 3. A copy of the authorization of the trustee to exercise corporate trust powers.* 4. A copy of the existing by-laws of the trustee.* 5. Not Applicable. 6. The consent of the trustee required by Section 321(b) of the Act. 7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. 8. Not Applicable. 9. Not Applicable. 3 Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bank One Trust Company, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago and State of Illinois, on the 7th day of August, 2000. BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION, TRUSTEE BY /s/ JOHN R. PRENDIVILLE JOHN R. PRENDIVILLE VICE PRESIDENT * Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits bearing identical numbers in Item 16 of the Form T-1 of Bank One Trust Company, National Association, filed as Exhibit 25 to the Registration Statement on Form S-4 of U S WEST Communications, Inc., filed with the Securities and Exchange Commission on March 24, 2000 (Registration No. 333-32124). 4 EXHIBIT 6 THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(b) OF THE ACT August 7, 2000 Securities and Exchange Commission Washington, D.C. 20549 Ladies and Gentlemen: In connection with the qualification of a guarantee agreement between Northern Border Intermediate Limited Partnership and Bank One Trust Company, National Association, as Trustee, the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor. Very truly yours, BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION BY: /s/ JOHN R. PRENDIVILLE JOHN R. PRENDIVILLE SENIOR COUNSEL 5 EXHIBIT 7 Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 03/31/00 State #: 391581 FFIEC 032 Address: 100 Broad Street Vendor ID: D Cert #: 21377 Page RC-1 City, State Zip: Columbus, OH 43271 Transit #: 04400003
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 2000 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding of the last business day of the quarter. SCHEDULE RC--BALANCE SHEET
DOLLAR AMOUNTS IN THOUSANDS RCON BIL MIL THOU C300 ---- ------------ ---- ASSETS 1. Cash and balances due from depository institutions (from Schedule RC-A): RCON ---- a. Noninterest-bearing balances and currency and coin(1)............ 0081 48,450 1.a b. Interest-bearing balances(2)..................................... 0071 17,750 1.b 2. Securities a. Held-to-maturity securities (from Schedule RC-B, column A)....... 1754 0 2.a b. Available-for-sale securities (from Schedule RC-B, column D)..... 1773 5,714 2.b 3. Federal funds sold and securities purchased under agreements to resell.............................................................. 1350 396,644 3. 4. Loans and lease financing receivables: RCON a. Loans and leases, net of unearned income (from Schedule ---- RC-C)............................................................... 2122 87,817 4.a b. LESS: Allowance for loan and lease losses........................ 3123 10 4.b c. LESS: Allocated transfer risk reserve............................ 3128 0 4.c RCON d. Loans and leases, net of unearned income, allowance, and ----- reserve (item 4.a minus 4.b and 4.c)............................. 2125 87,807 4.d 5. Trading assets (from Schedule RD-D)................................. 3545 0 5. 6. Premises and fixed assets (including capitalized leases)............ 2145 25,200 6. 7. Other real estate owned (from Schedule RC-M)........................ 2150 0 7. 8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M)...................................... 2130 0 8. 9. Customers' liability to this bank on acceptances outstanding........ 2155 0 9. 10. Intangible assets (from Schedule RC-M).............................. 2143 26,345 10. 11. Other assets (from Schedule RC-F)................................... 2160 176,297 11. 12. Total assets (sum of items 1 through 11)............................ 2170 784,207 12.
(1) Includes cash items in process of collection and unposted debits. (2) Includes time certificates of deposit not held for trading. 6 Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 03/31/00 State #: 391581 FFIEC 032 Address: 100 East Broad Street Vendor ID: D Cert #: 21377 Page RC-2 City, State Zip: Columbus, OH 43271 Transit #: 04400003
SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS IN THOUSANDS LIABILITIES 13. Deposits: RCON a. In domestic offices (sum of totals of columns A and C ---- from Schedule RC-E, part 1)...................................... 2200 567,764 13.a (1) Noninterest-bearing(1)....................................... 6631 506,455 13.a1 (2) Interest-bearing............................................. 6636 61,309 13.a2 b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, part II)............................... (1) Noninterest bearing.......................................... (2) Interest-bearing............................................. 14. Federal funds purchased and securities sold under agreements to repurchase: RCFD 2800 0 14 15. a. Demand notes issued to the U.S. Treasury......................... RCON 2840 0 15.a b. Trading Liabilities(from Schedule RC-D).......................... RCFD 3548 0 15.b RCON 16. Other borrowed money: ---- a. With original maturity of one year or less....................... 2332 0 16.a b. With original maturity of more than one year.................... A547 0 16.b c. With original maturity of more than three years ................. A548 0 16.c 17. Not applicable...................................................... 18. Bank's liability on acceptance executed and outstanding............. 2920 0 18. 19. Subordinated notes and debentures................................... 3200 0 19. 20. Other liabilities (from Schedule RC-G).............................. 2930 83,885 20. 21. Total liabilities (sum of items 13 through 20)...................... 2948 651,649 21. 22. Not applicable EQUITY CAPITAL 23. Perpetual preferred stock and related surplus....................... 3838 0 23. 24. Common stock........................................................ 3230 800 24. 25. Surplus (exclude all surplus related to preferred stock)............ 3839 45,157 25. 26. a. Undivided profits and capital reserves........................... 3632 86,585 26.a b. Net unrealized holding gains (losses) on available-for-sale securities....................................................... 8434 16 26.b c. Accumulated net gains (losses) on cash flow hedges .............. 4336 0 26.c 27. Cumulative foreign currency translation adjustments................. 28. Total equity capital (sum of items 23 through 27)................... 3210 132,558 28. 29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21, 22, and 28)............................... 3300 784,207 29.
Memorandum To be reported only with the March Report of Condition. 1. Indicate in the box at the right the number of the statement below that best describes the most Number comprehensive level of auditing work performed for the bank by independent external N/A auditors as of any date during 1996.................................RCFD 6724 M.1. 1 - Independent audit of the bank conducted in accordance 4.- Directors' examination of the bank performed by other with generally accepted auditing standards by a certified external auditors (may be required by state chartering public accounting firm which submits a report on the bank authority) 2 - Independent audit of the bank's parent holding company 5 - Review of the bank's financial statements by external conducted in accordance with generally accepted auditing auditors standards by a certified public accounting firm which 6 - Compilation of the bank's financial statements by external submits a report on the consolidated holding company auditors (but not on the bank separately) 7 - Other audit procedures (excluding tax preparation work) 3 - Directors' examination of the bank conducted in 8 - No external audit work accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority)
(1) Includes total demand deposits and noninterest-bearing time and savings deposits. EX-99.1 11 h80326ex99-1.txt FORM OF LETTER OF TRANSMITTAL 1 EXHIBIT 99.1 FORM OF LETTER OF TRANSMITTAL INSTRUCTIONS TO REGISTERED HOLDER AND/OR BOOK-ENTRY TRANSFER FACILITY PARTICIPANT FROM BENEFICIAL OWNER OF NORTHERN BORDER PARTNERS, L.P. 8 7/8% SENIOR NOTES DUE 2010 To Registered Holder and/or Participant of the Book-Entry Transfer Facility: The undersigned hereby acknowledges receipt of the Prospectus, dated , 2000 (the "Prospectus") of Northern Border Partners, L.P., a limited partnership formed under the laws of Delaware (the "Partnership"), and the accompanying Letter of Transmittal (the "Letter of Transmittal"), that together constitute the Partnership's offer (the "Exchange Offer") of 8 7/8% Senior Notes due 2010, Series A (the "New Notes") in exchange for outstanding 8 7/8% Senior Notes due 2010 (the "Existing Notes"). Capitalized terms used but not defined herein have the meanings ascribed to them in the Prospectus. This will instruct you, the registered holder and/or book-entry transfer facility participant, as to action to be taken by you relating to the Exchange Offer with respect to the Existing Notes held by you for the account of the undersigned. The aggregate face amount of the Existing Notes held by you for the account of the undersigned is (fill in amount): $ of the 8 7/8% Senior Notes due 2010 With respect to the Exchange Offer, the undersigned hereby instructs you (CHECK APPROPRIATE BOX): [ ] TO TENDER any Existing Notes held by you for the account of the undersigned (INSERT PRINCIPAL AMOUNT OF EXISTING NOTES TO BE TENDERED, IF ANY): $ [ ] NOT TO TENDER the following Existing Notes held by you for the account of the undersigned. If the undersigned instructs you to tender the Existing Notes held by you for the account of the undersigned, it is understood that you are authorized (a) to make, on behalf of the undersigned (and the undersigned, by its signature below, hereby makes to you), the representations and warranties contained in the Letter of Transmittal that are to be made with respect to the undersigned as a beneficial owner, including but not limited to the representations that (i) the undersigned's principal residence is in the state of (FILL IN STATE), (ii) the undersigned is acquiring the New Notes in the ordinary course of business of the undersigned, (iii) the undersigned is not participating, does not participate, and has no arrangement or understanding with any person to participate in the distribution of the New Notes, (iv) the undersigned acknowledges that any person participating in the Exchange Offer for the purpose of distributing the New Notes must comply with the registration and prospectus delivery requirements of the Securities Act of 1933, as amended (the "Securities Act"), in connection with a secondary resale transaction of the New Notes acquired by such person and cannot rely on the position of the Staff of the Securities and Exchange Commission set forth in no-action letters that are discussed in the section of the Prospectus entitled "The Exchange Offer -- Resale of New Notes," and (v) the undersigned is not an "affiliate," as defined in Rule 405 under the Securities Act, of the Partnership; (b) to agree, on behalf of 2 the undersigned, as set forth in the Letter of Transmittal; and (c) to take such other action as necessary under the Prospectus or the Letter of Transmittal to effect the valid tender of such Existing Notes. [ ] Check this box if the Beneficial Owner of the Existing Notes is a Participating Broker-Dealer and such Participating Broker-Dealer acquired the Existing Notes for its own account as a result of market-making activities or other trading activities. 3 LETTER OF TRANSMITTAL NORTHERN BORDER PARTNERS, L.P. TO TENDER 8 7/8% SENIOR NOTES DUE 2010 ("EXISTING NOTES") IN EXCHANGE FOR REGISTERED 8 7/8% SENIOR NOTES DUE 2010, SERIES A ("NEW NOTES") THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2000, UNLESS THE OFFER IS EXTENDED TO BANK ONE TRUST COMPANY, NA (THE "EXCHANGE AGENT") By Registered or Certified Mail: Inquiries by Telephone or Confirmations: Bank One Trust Company, NA (800) 524-9472 1 Bank One Plaza Mail Code IL1-0126 By Facsimile Transmission Chicago, Illinois 60670 (for Eligible Institutions Only): Attention: Sharon McGrath Bank One Trust Company, NA (312) 407-1708 Attention: Corporate Trust Services
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER THAN THE ONE LISTED ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED. The undersigned hereby acknowledges receipt of the Prospectus dated , 2000 (the "Prospectus") of Northern Border Partners, L.P. (the "Partnership") and this Letter of Transmittal (the "Letter of Transmittal"), which together constitute the Partnership's offer (the "Exchange Offer") to exchange each $1,000 principal amount of its 8 7/8% Senior Notes due 2010, Series A (the "New Notes"), which have been registered under the Securities Act of 1933, as amended (the "Securities Act"), pursuant to a Registration Statement of which the Prospectus is a part, for each $1,000 principal amount of its outstanding 8 7/8% Senior Notes due 2010 (the "Existing Notes"). The terms of the New Notes are identical in all material respects (including principal amount, interest rate and maturity) to the terms of the Existing Notes for which they may be exchanged pursuant to the Exchange Offer, except that, among other things, (i) the New Notes have been registered under the Securities Act and, therefore, will not bear legends restricting the transfer thereof and (ii) holders of New Notes will not be entitled to certain rights of holders of Existing Notes under the Registration Rights Agreements. The term "Expiration Date" shall mean 5:00 p.m., New York City time, on , 2000, unless the Partnership, in its sole discretion extends the Exchange Offer, in which case the term shall mean the latest date and time to which the Exchange Offer is extended. Capitalized terms used but not defined herein have the meaning given to them in the Prospectus. This Letter of Transmittal is to be used (i) if certificates of Existing Notes are to be forwarded herewith, (ii) if delivery of Existing Notes is to be made by book-entry transfer to an account maintained by the Exchange Agent at The Depository Trust Company ("DTC"), pursuant to the procedures set forth in the "The Exchange Offer -- Procedures for Tendering Outstanding Notes" in the Prospectus or (iii) if tender of the Existing Notes is to be made according to the guaranteed delivery procedures described in the Prospectus under the caption "The Exchange Offer -- Procedures for Tendering Outstanding Notes -- Guaranteed Delivery." See Instruction 2. Delivery of documents to a book-entry transfer facility does not constitute delivery to the Exchange Agent. The term "Holder" with respect to the Exchange Offer means any person in whose name Existing Notes are registered on the books of the Partnership or any other person who has obtained a properly completed bond power from the registered holder. Holders who wish to tender their Existing Notes must, at a minimum, fill in the necessary account information in the table below entitled "Account Information" (the "Account Information Table"), complete columns (1) through (3) in the table below entitled "Description of Existing Notes Tendered" (the "Description Table"), complete and sign in the box below entitled "Registered Holder(s) of Existing Notes Sign Here" and complete the Substitute Form W-9. If a holder wishes to tender less than all of such Existing Notes delivered to the Exchange Agent, column (4) of the Description Table must be completed in full. See Instruction 3. 4 Holders of Existing Notes that are tendering by book-entry transfer to the Exchange Agent's account at The Depository Trust Company ("DTC") can execute the exchange through the DTC Automated Tender Offer Program ("ATOP"), for which the transaction will be eligible. DTC participants that are accepting the exchange should transmit their acceptance to DTC, which will edit and verify the acceptance and execute a book-entry delivery to the Exchange Agent's account at DTC. DTC will then send an Agent's Message to the Exchange Agent for its acceptance. Delivery of the Agent's Message, by DTC will satisfy the terms of the exchange as to the execution and delivery of a Letter of Transmittal by the participant identified in the Agent's Message. DTC participants may also accept the exchange by submitting a notice of guaranteed delivery through ATOP. The undersigned has completed, executed and delivered this Letter of Transmittal to indicate the action the undersigned agree to take with respect to the Exchange Offer. Holders who wish to tender their Existing Notes must complete this Letter of Transmittal in its entirety. PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL, INCLUDING THE ACCOMPANYING INSTRUCTIONS, AND THE PROSPECTUS CAREFULLY BEFORE COMPLETING THIS LETTER OF TRANSMITTAL. YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED. QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS AND THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT. SEE INSTRUCTION 9. NOTE: SIGNATURES MUST BE PROVIDED BELOW PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY Ladies and Gentlemen: Upon the terms and subject to the conditions of the Exchange Offer, the undersigned hereby tenders to the Partnership the principal amount of the Existing Notes indicated under "Description of Existing Notes Tendered" in exchange for a like principal amount of the New Notes. Subject to, and effective upon, the acceptance for exchange of such Existing Notes tendered hereby, the undersigned hereby exchanges, assigns and transfers to, or upon the order of, the Partnership all right, title and interest in and to such Existing Notes as are being tendered hereby, including all rights to accrued and unpaid interest thereon as of the Expiration Date and any and all claims in respect of or arising or having arisen as a result of the undersigned's status as a holder of, all Existing Notes tendered hereby. The undersigned hereby irrevocably constitutes and appoints the Exchange Agent the true and lawful agent and attorney-in-fact of the undersigned (with full knowledge that said Exchange Agent acts as the agent of the Partnership in connection with the Exchange Offer) to cause the Existing Notes to be assigned, transferred and exchanged. The undersigned represents and warrants that (a) it has full power and authority to tender, exchange, assign and transfer the Existing Notes and to acquire New Notes issuable upon the exchange of such tendered Existing Notes; and (b) when the same are accepted for exchange, the Partnership will acquire good and unencumbered title to the tendered Existing Notes, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim. The undersigned is the registered owner of all tendered Existing Notes and the undersigned represents that it has received from each beneficial owner of tendered Existing Notes ("Beneficial Owners") a duly completed and executed form of "Instructions to Registered Holder and/or Book-Entry Transfer Facility Participant from Beneficial Owner" accompanying this Letter of Transmittal, instructing the undersigned to take the action described in this Letter of Transmittal. The undersigned understands that, subject to the terms and conditions of the Exchange Offer, Existing Notes properly tendered and not withdrawn will be exchanged for New Notes. If any amount of tendered Existing Notes is not exchanged for any reason, or if certificates are submitted that evidence a 5 greater principal amount of Existing Notes than the principal amount to be tendered, such unexchanged Existing Notes or Existing Notes for untendered amounts, as the case may be, will be returned, without expense, to the undersigned, either to the book-entry transfer facility account from which tender was effected or to the address below if Existing Notes were tendered in physical form. THE UNDERSIGNED HEREBY REPRESENTS TO THE PARTNERSHIP THAT (I) THE NEW NOTES ACQUIRED PURSUANT TO THE EXCHANGE OFFER ARE BEING OBTAINED IN THE ORDINARY COURSE OF BUSINESS OF THE PERSON RECEIVING SUCH NEW NOTES, WHETHER OR NOT SUCH PERSON IS THE UNDERSIGNED, AND (II) NEITHER THE UNDERSIGNED NOR ANY SUCH OTHER PERSON HAS AN ARRANGEMENT OR UNDERSTANDING WITH ANY PERSON TO PARTICIPATE IN THE DISTRIBUTION OF SUCH NEW NOTES. IF THE UNDERSIGNED OR THE PERSON RECEIVING THE NEW NOTES COVERED HEREBY IS A BROKER-DEALER THAT IS RECEIVING THE NEW NOTES FOR ITS OWN ACCOUNT IN EXCHANGE FOR EXISTING NOTES THAT WERE ACQUIRED AS A RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES, THE UNDERSIGNED ACKNOWLEDGES THAT IT OR SUCH OTHER PERSON WILL DELIVER A PROSPECTUS IN CONNECTION WITH ANY RESALE OF SUCH NEW NOTES; HOWEVER, BY SO ACKNOWLEDGING AND BY DELIVERING A PROSPECTUS, THE UNDERSIGNED WILL NOT BE DEEMED TO ADMIT THAT IT IS AN "UNDERWRITER" WITHIN THE MEANING OF THE SECURITIES ACT. THE UNDERSIGNED AND ANY SUCH OTHER PERSON ACKNOWLEDGE THAT, IF THEY ARE PARTICIPATING IN THE EXCHANGE OFFER FOR THE PURPOSE OF DISTRIBUTING THE NEW NOTES, (I) THEY CANNOT RELY ON THE POSITION OF THE STAFF OF THE SECURITIES AND EXCHANGE COMMISSION ENUNCIATED IN EXXON CAPITAL HOLDINGS CORPORATION (AVAILABLE MAY 13, 1988), MORGAN STANLEY & CO., INCORPORATED (AVAILABLE JUNE 5, 1991) OR SIMILAR NO-ACTION LETTERS AND, IN THE ABSENCE OF AN EXEMPTION THEREFROM, MUST COMPLY WITH THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT IN CONNECTION WITH THE RESALE TRANSACTION AND (II) FAILURE TO COMPLY WITH SUCH REQUIREMENTS IN SUCH INSTANCE COULD RESULT IN THE UNDERSIGNED OR ANY SUCH OTHER PERSON INCURRING LIABILITY UNDER THE SECURITIES ACT FOR WHICH SUCH PERSONS ARE NOT INDEMNIFIED BY THE PARTNERSHIP. IF THE UNDERSIGNED OR THE PERSON RECEIVING THE NEW NOTES COVERED BY THIS LETTER IS AN AFFILIATE (AS DEFINED UNDER RULE 405 OF THE SECURITIES ACT) OF THE PARTNERSHIP, THE UNDERSIGNED REPRESENTS TO THE PARTNERSHIP THAT THE UNDERSIGNED UNDERSTANDS AND ACKNOWLEDGES THAT SUCH NEW NOTES MAY NOT BE OFFERED FOR RESALE, RESOLD OR OTHERWISE TRANSFERRED BY THE UNDERSIGNED OR SUCH OTHER PERSON WITHOUT REGISTRATION UNDER THE SECURITIES ACT OR AN EXEMPTION THEREFROM. The undersigned also warrants that it will upon request, execute and deliver any additional documents deemed by the Exchange Agent or the Partnership to be necessary or desirable, to complete the exchange, assignment and transfer of tendered Existing Notes or transfer ownership of such Existing Notes on the account books maintained by a book-entry transfer facility. The undersigned further agrees that acceptance of any tendered Existing Notes by the Partnership and the issuance of New Notes in exchange therefor shall constitute performance in full by the Partnership of its obligations under the Registration Rights Agreements and that the Partnership shall have no further obligations or liabilities thereunder for the registration of the Existing Notes or the New Notes. The Exchange Offer is subject to certain conditions set forth in the Prospectus under the caption "The Exchange Offer -- Conditions to the Exchange Offer." The undersigned recognizes that as a result of these conditions (which may be waived, in whole or in part, by the Partnership), as more particularly set forth in the Prospectus, the Partnership may not be required to exchange any of the Existing Notes 6 tendered hereby and, in such event, the Existing Notes not exchanged will be returned to the undersigned at the address show below the signature of the undersigned. TENDERS OF EXISTING NOTES MADE PURSUANT TO THE EXCHANGE OFFER MAY NOT BE WITHDRAWN AFTER 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE. A PURPORTED NOTICE OF WITHDRAWAL WILL BE EFFECTIVE ONLY IF DELIVERED TO THE EXCHANGE AGENT IN ACCORDANCE WITH THE SPECIFIC PROCEDURES SET FORTH IN THE PROSPECTUS UNDER THE HEADING "THE EXCHANGE OFFER -- WITHDRAWAL OF TENDERS." All authority herein conferred or agreed to be conferred shall survive the death or incapacity of the undersigned and every obligation of the undersigned hereunder shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned. Tendered Existing Notes may be withdrawn at any time prior to the Expiration Date only in accordance with the procedures set forth in the Instructions contained in the Letter of Transmittal and the Prospectus. Unless otherwise indicated in the box entitled "Special Registration Instructions" or the box entitled "Special Delivery Instructions" in this Letter of Transmittal, certificates for all New Notes delivered in exchange for tendered Existing Notes, and any Existing Notes delivered herewith but not exchanged, will be registered in the name of the undersigned and shall be delivered to the undersigned, at the address shown below the signature of the undersigned. If a New Note is to be issued to a person other than the person(s) signing this Letter of Transmittal, or if the New Note is to be mailed to someone other than the person(s) signing this Letter of Transmittal or to the person(s) signing this Letter of Transmittal at an address different than the address shown on this Letter of Transmittal, the appropriate boxes of this Letter of Transmittal should be completed. IF EXISTING NOTES ARE SURRENDERED BY HOLDER(S) THAT HAVE COMPLETED EITHER THE BOX ENTITLED "SPECIAL REGISTRATION INSTRUCTIONS" OR THE BOX ENTITLED "SPECIAL DELIVERY INSTRUCTIONS" IN THIS LETTER OF TRANSMITTAL, SIGNATURE(S) ON THIS LETTER OF TRANSMITTAL MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION (DEFINED IN INSTRUCTION 2). 7 REGISTERED HOLDER(S) OF EXISTING NOTES SIGN HERE (IN ADDITION, COMPLETE SUBSTITUTE FORM W-9 BELOW) X - -------------------------------------------------------------------------------- X - -------------------------------------------------------------------------------- (SIGNATURE(S) OF REGISTERED HOLDER(S)) Must be signed by registered holder(s) exactly as name(s) appear(s) on the Existing Notes or on a security position listing as the owner of the Existing Notes or by person(s) authorized to become registered holder(s) by properly completed bond powers transmitted herewith. If signature is by attorney-in-fact, trustee, executor, administrator, guardian, officer of a corporation or other person acting in a fiduciary capacity, please provide the following information (Please print or type): Name and Capacity (full title): - ------------------------------------------------------------ Address (including zip code): - ------------------------------------------------------------ - ------------------------------------------------------------ Area Code and Telephone Number: - ------------------------------------------------------------ Dated: - --------------------------- , 2000 SIGNATURE GUARANTEE (IF REQUIRED -- SEE INSTRUCTION 4) Authorized Signature: - -------------------------------------------------------------------------------- (SIGNATURE OF REPRESENTATIVE OF SIGNATURE GUARANTOR) Name and Title: - -------------------------------------------------------------------------------- Name of Firm: - -------------------------------------------------------------------------------- Area Code and Telephone Number: - --------------------------------------------------------------------- (PLEASE PRINT OR TYPE) Dated: - ------------------------------ 8 SPECIAL REGISTRATION INSTRUCTIONS To be completed ONLY if the New Notes and any Existing Notes delivered herewith but not exchanged are to be issued in the name of someone other than the undersigned or are to be returned by credit to an account maintained by a book-entry transfer facility. Issue New Notes and any Existing Notes delivered herewith but not exchanged to: Name - ---------------------------------------- Address: - ---------------------------------------- - ---------------------------------------- - ---------------------------------------- (PLEASE PRINT OR TYPE) Credit New Notes and any Existing Notes delivered herewith but not exchanged to the following book-entry transfer facility account: - ---------------------------------------- (NAME OF BOOK-ENTRY TRANSFER FACILITY) - ---------------------------------------- (ACCOUNT NUMBER) SPECIAL DELIVERY INSTRUCTIONS To be completed ONLY if the New Notes and any Existing Notes delivered herewith but not exchanged are to be sent to someone other than the undersigned, or to the undersigned at an address other than that shown under "Description of Existing Notes Tendered." Mail New Notes and any Existing Notes delivered herewith but not exchanged to: Name - ---------------------------------------- Address: - ---------------------------------------- - ---------------------------------------- - ---------------------------------------- (PLEASE PRINT OR TYPE) 9 LIST BELOW THE EXISTING NOTES TO WHICH THIS LETTER OF TRANSMITTAL RELATES. IF THE SPACE INDICATED BELOW IS INADEQUATE, THE CERTIFICATE NUMBERS AND PRINCIPAL AMOUNTS SHOULD BE LISTED ON A SEPARATELY SIGNED SCHEDULE AFFIXED HERETO. - -------------------------------------------------------------------------------- DESCRIPTION OF EXISTING NOTES TENDERED
- --------------------------------------------------------------------------------------------------------------------- (1) (2) (3) AGGREGATE PRINCIPAL (4) NAME(S) AND ADDRESS(ES) AMOUNT PRINCIPAL AMOUNT OF REGISTERED HOLDER(S) REGISTRATION REPRESENTED BY TENDERED (PLEASE FILL IN) NUMBERS* EXISTING NOTES** (IF LESS THAN ALL)** - --------------------------------------------------------------------------------------------------------------------- ------------------------------------------------------------------------ ------------------------------------------------------------------------ ------------------------------------------------------------------------ ------------------------------------------------------------------------ ------------------------------------------------------------------------ ------------------------------------------------------------------------ ------------------------------------------------------------------------ ------------------------------------------------------------------------ ------------------------------------------------------------------------ ------------------------------------------------------------------------ ------------------------------------------------------------------------ ------------------------------------------------------------------------ ------------------------------------------------------------------------ TOTAL - ---------------------------------------------------------------------------------------------------------------------
* Need not be completed by book-entry Holders. ** Unless otherwise indicated, the Holder will be deemed to have tendered the full aggregate principal amount represented by such Existing Notes. All tenders must be in integral multiples of $1,000. - -------------------------------------------------------------------------------- 10 ACCOUNT INFORMATION [ ] CHECK HERE IF TENDERED EXISTING NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH A BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING. Name of Tendering Institution -------------------------------------------------- If delivered by book-entry transfer: Account Number --------------- Transaction Code Number --------------- [ ] CHECK HERE IF TENDERED EXISTING NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING. Name of Registered Holder(s) --------------------------------------------------- Name of Eligible Institution that Guaranteed Delivery -------------------------- If delivered by book-entry transfer: Account Number -------------------- Transaction Code Number -------------------- Holders whose Existing Notes are not immediately available or who cannot deliver their Existing Notes and all other documents required hereby to the Exchange Agent on or prior to the Expiration Date must tender their Existing Notes according to the guaranteed delivery procedure set forth in the Prospectus under the caption "The Exchange Offer -- Procedures for Tendering Outstanding Notes -- Guaranteed Delivery ." See Instruction 2. [ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO. Name --------------------------------------------------------------------------- Address ------------------------------------------------------------------------ Area Code and Telephone Number ------------------------------------------------- Contact Person ----------------------------------------------------------------- 11 INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER 1. Delivery of this Letter of Transmittal and Existing Notes. All physically delivered Existing Notes or confirmation of any book-entry transfer to the Exchange Agent's account at a book-entry transfer facility of Existing Notes tendered by book-entry transfer, as well as a properly completed and duly executed copy of this Letter of Transmittal or facsimile thereof, and any other documents required by this Letter of Transmittal, must be received by the Exchange Agent at any of its addresses set forth herein on or prior to the Expiration Date (as defined in the Prospectus). THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE EXISTING NOTES AND ANY OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY BY BOOK-ENTRY TRANSFER AND ANY ACCEPTANCE OR AGENT'S MESSAGE DELIVERED THROUGH ATOP, IS AT THE ELECTION AND RISK OF THE HOLDER, AND, EXCEPT AS OTHERWISE PROVIDED BELOW, THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF SUCH DELIVERY IS BY MAIL, IT IS SUGGESTED THAT REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, BE USED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY. No alternative, conditional, irregular or contingent tenders will be accepted. All tendering Holders, by execution of this Letter of Transmittal (or facsimile thereof), shall waive any right to receive notice of the acceptance of the Existing Notes for exchange. DELIVERY TO AN ADDRESS OTHER THAN AS SET FORTH HEREIN, OR INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER THAN THE ONE SET FORTH HEREIN, WILL NOT CONSTITUTE A VALID DELIVERY. 2. Guaranteed Delivery Procedures. Holders who wish to tender their Existing Notes, but whose Existing Notes are not immediately available and thus cannot deliver their Existing Notes, the Letter of Transmittal or any other required documents to the Exchange Agent (or comply with the procedures for book-entry transfer) prior to the Expiration Date, may effect a tender if: (a) the tender is made through a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc., a commercial bank or trust company having an office or correspondent in the United States or an "eligible guarantor institution" within the meaning of Rule 17Ad-15 under the Exchange Act (an "Eligible Institution"); (b) prior to the Expiration Date, the Exchange Agent receives from such Eligible Institution a properly completed and duly executed Notice of Guaranteed Delivery (by facsimile transmission, mail or hand delivery) setting forth the name and address of the Holder, the registration number(s) of such Existing Notes and the principal amount of Existing Notes tendered, stating that the tender is being made thereby and guaranteeing that, within three New York Stock Exchange trading days after the Expiration Date, the Letter of Transmittal (or facsimile thereof), together with the Existing Notes (or a confirmation of book-entry transfer of such Existing Notes into the Exchange Agent's account at the book-entry transfer facility) and any other documents required by the Letter of Transmittal, will be deposited by the Eligible Institution with the Exchange Agent; and (c) such properly completed and executed Letter of Transmittal (or facsimile thereof), as well as all tendered Existing Notes in proper form for transfer (or a confirmation of book-entry transfer of such Existing Notes into the Exchange Agent's account at the book-entry transfer facility) and all other documents required by the Letter of Transmittal, are received by the Exchange Agent within three New York Stock Exchange trading days after the Expiration Date. Upon request to the Exchange Agent, a Notice of Guaranteed Delivery will be sent to Holders who wish to tender their Existing Notes according to the guaranteed delivery procedures set forth above. Any 12 holder who wishes to tender Existing Notes pursuant to the guaranteed delivery procedures described above must ensure that the Exchange Agent receives the Notice of Guaranteed Delivery relating to such Existing Notes prior to the Expiration Date. Failure to complete the guaranteed delivery procedures outlined above will not, of itself, affect the validity or effect a revocation of any Letter of Transmittal form properly completed and executed by a Holder who attempted to use the guaranteed delivery procedures. 3. Partial Tenders; Withdrawals. Tenders of Existing Notes will be accepted only in integral multiples of $1,000. The aggregate principal amount of all Existing Notes delivered to the Exchange Agent will be deemed to have been tendered unless otherwise indicated in the Description Table. If less than the entire principal amount of Existing Notes evidenced by a submitted certificate is tendered, the tendering Holder should fill in the principal amount tendered in the column entitled "Principal Amount Tendered (if less than all)" in the Description Table. A newly issued Existing Note for the principal amount of Existing Notes submitted but not tendered will be sent to such Holder as soon as practicable after the Expiration Date unless otherwise provided in the appropriate box on this Letter of Transmittal. Book-entry transfer to the Exchange Agent should be made in the exact principal amount of Existing Notes tendered. Existing Notes tendered pursuant to the Exchange Offer may be withdrawn at any time prior to the Expiration Date, after which tenders of Existing Notes are irrevocable. To be effective, a written telegraphic or facsimile transmission notice of withdrawal must be timely received by the Exchange Agent. Any such notice of withdrawal must (i) specify the name of the person having deposited the Existing Notes to be withdrawn (the "Depositor"), (ii) identify the Existing Notes to be withdrawn (including the registration number(s) and principal amount of such Existing Notes, or, in the case of Existing Notes transferred by book-entry transfer, the name and number of the account at the book-entry transfer facility to be credited), (iii) be signed by the Holder in the same manner as the original signature on this Letter of Transmittal (including any required signature guarantees) or be accompanied by documents of transfer sufficient to have the Trustee with respect to the Existing Notes register the transfer of such Existing Notes into the name of the person withdrawing the tender and (iv) specify the name in which any such Existing Notes are to be registered, if different from that of the Depositor. If Existing Notes have been tendered pursuant to the procedures for book-entry transfer, any notice of withdrawal must also comply with DTC's procedures. All questions as to the validity, form and eligibility (including time of receipt) of such notices will be determined by the Partnership, whose determination shall be final and binding on all parties. Any Existing Notes so withdrawn will be deemed not to have been validly tendered for purposes of the Exchange Offer and no New Notes will be issued with respect thereto unless the Existing Notes so withdrawn are validly retendered. Any Existing Notes which have been tendered but which are not accepted for exchange will be returned to the Holder thereof without cost to such Holder as soon as practicable after withdrawal, rejection of tender or termination of the Exchange Offer, unless otherwise provided in the appropriate box on this Letter of Transmittal. 4. SIGNATURE ON THIS LETTER OF TRANSMITTAL; WRITTEN INSTRUMENTS AND ENDORSEMENTS; GUARANTEE OF SIGNATURES. IF THIS LETTER OF TRANSMITTAL IS SIGNED BY THE REGISTERED HOLDER(S) OF THE EXISTING NOTES TENDERED HEREBY, THE SIGNATURE MUST CORRESPOND WITH THE NAME(S) AS WRITTEN ON THE FACE OF THE CERTIFICATES WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER. IF THIS LETTER OF TRANSMITTAL IS SIGNED BY A PARTICIPANT IN A BOOK-ENTRY TRANSFER FACILITY, THE SIGNATURE MUST CORRESPOND WITH THE NAME AS IT APPEARS ON THE SECURITY POSITION LISTING AS THE OWNER OF THE EXISTING NOTES. If any of the Existing Notes tendered hereby are owned of record by two or more joint owners, all such owners must sign this Letter of Transmittal. If a number of Existing Notes registered in different names are tendered, it will be necessary to complete, sign and submit as many separate copies of this Letter of Transmittal as there are different registrations of Existing Notes. 13 Signatures on this Letter of Transmittal or a notice of withdrawal, as the case may be, must be guaranteed by an Eligible Institution unless the Existing Notes tendered hereby are tendered (i) by a registered Holder who has not completed the box entitled "Special Registration Instructions" or "Special Delivery Instructions" on the Letter of Transmittal or (ii) for the account of an Eligible Institution. If this Letter of Transmittal is signed by the registered Holder or Holders of Existing Notes (which term, for the purpose described herein, shall include a participant in a book-entry transfer facility whose name appears on a security listing as the owner of the Existing Notes) listed and tendered hereby, no endorsements of the tendered Existing Notes or separate written instruments of transfer or exchange are required. In any other case, the registered Holder (or acting Holder) must either properly endorse the Existing Notes or transmit properly completed bond powers with this Letter of Transmittal (in either case, executed exactly as the name(s) of the registered Holder(s) appears(s) on the Existing Notes, and, with respect to a participant in a book-entry transfer facility whose name appears on a security position listing as the owner of Existing Notes, exactly as the name of the participant appears on such security position listing), with the signature on the Existing Notes or bond power guaranteed by an Eligible Institution (except where the Existing Notes are tendered for the account of an Eligible Institution). Only a Holder in whose name tendered Existing Notes are registered on the books of the registrar (or the legal representative or attorney-in-fact of such registered Holder) may execute and deliver this Letter of Transmittal. Any Beneficial Owner of tendered Existing Notes who is not the registered Holder must arrange promptly with the registered Holder to execute and deliver this Letter of Transmittal on his or her behalf through the execution and delivery to the registered Holder of the Instructions to Registered Holder and/or Book-Entry Transfer Facility Participant from Beneficial Owner form accompanying this Letter of Transmittal. If this Letter of Transmittal, any certificates or separate written instruments of transfer or exchange are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by the Partnership, proper evidence satisfactory to the Partnership of their authority so to act must be submitted. 5. Special Registration and Delivery Instructions. Tendering Holders should indicate, in the applicable box, the name and address (or account at a book-entry facility) in which the New Notes or substitute Existing Notes for principal amounts not tendered or not accepted for exchange are to be issued (or deposited), if different from the names and addresses or accounts of the person signing this Letter of Transmittal. In the case of issuance in a different name, the employer identification number or social security number of the person named must also be indicated and the tendering Holder should complete the applicable box. If no instructions are given, the New Notes (and any Existing Notes not tendered or not accepted ) will be issued in the name of and sent to the acting Holder of the Existing Notes or deposited at such Holder's account at a book-entry transfer facility. 6. Transfer Taxes. The Partnership shall pay or cause to be paid all security transfer taxes, if any, applicable to the transfer and exchange of Existing Notes to it or its order pursuant to the Exchange Offer. If a transfer tax is imposed for any reason other than the transfer and exchange of Existing Notes to the Partnership or its order pursuant to the Exchange Offer, the amount of any such transfer taxes (whether imposed on the registered Holder or any other person) will be payable by the tendering Holder. If satisfactory evidence of payment of such taxes or exception therefrom is not submitted herewith, the amount of such transfer taxes will be billed directly to such tendering Holder. Except as provided in this Instruction 6, it will not be necessary for transfer stamps to be affixed to the Existing Notes listed in this Letter of Transmittal. 7. Waiver of Conditions. The Partnership reserves the absolute right to waive, in whole or in part, any of the conditions to the Exchange Offer set forth in the Prospectus. 14 8. Mutilated, Lost, Stolen or Destroyed Existing Notes. Any Holder whose Existing Notes have been mutilated, lost, stolen or destroyed should contact the Exchange Agent at the address indicated above for further instructions. 9. Requests for Assistance or Additional Copies. Questions relating to the procedure for tendering as well as requests for additional copies of the Prospectus and this Letter of Transmittal may be directed to the Exchange Agent at the address and telephone number(s) set forth above. In addition, all questions relating to the Exchange Offer, as well as requests for assistance or additional copies of the Prospectus and this Letter of Transmittal, may be directed to the Exchange Agent at Corporate Trust Office, 1 Bank One Plaza, Mail Code IL1-0126, Chicago, Illinois 60670-0126, Attention: Sharon McGrath (telephone: (800) 524-9472). 10. Validity and Form. All questions as to the validity, form, eligibility (including time of receipt), acceptance of tendered Existing Notes and withdrawal of tendered Existing Notes will be determined by the Partnership in its sole discretion, which determination will be final and binding. The Partnership reserves the absolute right to reject any and all Existing Notes not properly tendered or any Existing Notes the Partnership's acceptance of which would, in the opinion of counsel for the Partnership, be unlawful. The Partnership also reserves the right to waive any defects, irregularities or conditions of tender as to particular Existing Notes. The Partnership's interpretation of the terms and conditions of the Exchange Offer (including the instructions in this Letter of Transmittal) will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of Existing Notes must be cured within such time as the Partnership shall determine. Although the Partnership intends to notify Holders of defects or irregularities with respect to tenders of Existing Notes, neither the Partnership, the Exchange Agent nor any other person shall incur any liability for failure to give such notification. Tenders of Existing Notes will not be deemed to have been made until such defects or irregularities have been cured or waived. Any Existing Notes received by the Exchange Agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned by the Exchange Agent to the tendering Holders as soon as practicable following the Expiration Date, unless otherwise provided in the appropriate box on this Letter of Transmittal. 11. Substitute Form W-9. Federal income tax laws require each tendering Holder to provide the Partnership with a correct taxpayer identification number ("TIN") on the Substitute Form W-9 which is provided under "Important Tax Information" below, and to indicate whether or not the Holder is subject to backup withholding by checking the box in Part 2 of the Form. Failure to provide the information on the Form or to check the box in Part 2 of the Form may subject the tendering Holder to 31% Federal income tax withholding on the payments made to the Holder. The box in Part 3 of the Form may be checked if the tendering Holder has not been issued a TIN and has applied for the TIN or intends to apply for a TIN in the near future. If the box in Part 3 is checked and the Holder does not provide the Partnership with a TIN within sixty (60) days, the Partnership will withhold 31% on all such payments thereafter until a TIN is provided to the Partnership. 12. Conflicts. In the event of any conflict between the terms of the Prospectus and the terms of this Letter of Transmittal, the terms of the Prospectus will control. IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE THEREOF (TOGETHER WITH EXISTING NOTES OR CONFIRMATION OF BOOK ENTRY TRANSFER AND ALL OTHER REQUIRED DOCUMENTS) OR A NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE. 15 IMPORTANT TAX INFORMATION The Federal income tax discussion set forth below is included for general information only. Each Holder is urged to consult a tax adviser to determine the particular tax consequences to it (including the application and effect of foreign, state and local tax laws) of the offer. Certain Holders (including insurance companies, tax exempt organizations and foreign tax payers) may be subject to special rules not discussed below. The discussion does not consider the effect of any applicable foreign, state and local tax laws. Under Federal income tax law, a Holder tendering Existing Notes is required to provide the Exchange Agent with such Holder's correct TIN on Substitute Form W-9 below. If such Holder is an individual, the TIN is the Holder's social security number. The Certificate of Awaiting Tax Identification Number should be completed if the tendering Holder has not been issued a TIN and has applied for a number or intends to apply for a number in the near future. If the Exchange Agent is not provided with the correct TIN, the Holder may be subject to a $50 penalty imposed by the Internal Revenue Service. In addition, payments that are made to such Holder with respect to tendered Existing Notes may be subject to backup withholding. Certain Holders (including, among others, all corporations and certain foreign individuals and foreign entities) are not subject to these backup withholding and reporting requirements. A corporation, however, must complete the Substitute Form W-9, including providing its TIN and indicating that it is exempt from backup withholding, in order to establish its exemption from backup withholding. In order for a foreign individual to qualify as an exempt recipient, that holder must submit to the Exchange Agent a properly completed Internal Revenue Service Form W-8, signed under penalties of perjury, attesting to the Holder's exempt status. Such forms can be obtained from the Exchange Agent. If backup withholding applies, the Exchange Agent is required to withhold 31% of any amounts otherwise payable to the Holder. Backup withholding is not an additional tax. Rather, the tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund may be obtained from the Internal Revenue Service. PURPOSE OF SUBSTITUTE FORM W-9 To prevent backup withholding on payments that are made to a Holder with respect to Existing Notes tendered for exchange, the Holder is required to notify the Exchange Agent of his or her correct TIN by completing the form herein certifying that the TIN provided on Substitute Form W-9 is correct (or that such Holder is awaiting a TIN) and that (i) such Holder has not been notified by the Internal Revenue Service that he or she is subject to backup withholding as a result of failure to report all interest or dividends or (ii) the Internal Revenue Service has notified such Holder that he or she is no longer subject to backup withholding. WHAT NUMBER TO GIVE THE EXCHANGE AGENT Each Holder is required to give the Exchange Agent the social security number or employer identification number of the record Holder(s) of the Existing Notes. If Existing Notes are in more than one name or are not in the name of the actual Holder, consult the instructions on Internal Revenue Service, Form W-9, which may be obtained from the Exchange Agent, for additional guidance on which number to report. CERTIFICATE OF AWAITING TAX IDENTIFICATION NUMBER If the tendering Holder has not been issued a TIN and has applied for a number or intends to apply for a number in the near future, check the box in Part 3 on Substitute Form W-9, sign and date the form and the Certificate of Awaiting Taxpayer Identification Number and return them to the Exchange Agent. If such certificate is completed and the Exchange Agent is not provided with the TIN within 60 days, the Exchange Agent will withhold 31% of all payments made thereafter until a TIN is provided to the Exchange Agent. 16 THE FOREGOING DISCUSSION OF CERTAIN FEDERAL INCOME TAX CONSIDERATIONS DOES NOT CONSIDER THE PARTICULAR FACTS AND CIRCUMSTANCES OF ANY HOLDER'S SITUATION OR STATUS. THE SUMMARY IS BASED ON THE PROVISIONS OF THE CODE, REGULATIONS, PROPOSED REGULATIONS, RULINGS AND JUDICIAL DECISIONS NOW IN EFFECT, ALL OF WHICH ARE SUBJECT TO CHANGE, POSSIBLY ON A RETROACTIVE BASIS. HOLDERS OF EXISTING NOTES (INCLUDING HOLDERS OF EXISTING NOTES WHO DO NOT EXCHANGE THEIR EXISTING NOTES FOR NEW NOTES) SHOULD CONSULT THEIR OWN TAX ADVISORS WITH RESPECT TO THE TAX CONSEQUENCES TO THEM, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN AND OTHER LAWS, OF THE EXCHANGE OF EXISTING NOTES FOR NEW NOTES. FOR ADDITIONAL INFORMATION, SEE "UNITED STATES FEDERAL TAX CONSIDERATIONS" IN THE PROSPECTUS. 17 - ---------------------------------------------------------------------------------------------------------------------- PAYOR'S NAME: BANK ONE TRUST COMPANY, NA - ---------------------------------------------------------------------------------------------------------------------- PART 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX AT ------------------------------ SUBSTITUTE THE RIGHT AND CERTIFY BY SIGNING AND DATING Social Security Number(s) BELOW OR FORM W-9 Employer Identification Number ------------------------------------------------------------------------------------ DEPARTMENT OF THE TREASURY PART 2 -- Certification -- Under penalties of perjury, I certify that: INTERNAL REVENUE SERVICE (1) The number shown on this form is my correct Tax Identification Number (or I am waiting for a number to be issued to me) and (2) I am not subject to backup withholding because: (i) I am exempt from backup withholding, (ii) I have not been notified by the Internal Revenue Service (the "IRS") that I am subject to backup withholding as a result of a failure to report all interest or dividends or (iii) the IRS has modified me that I am no longer subject to backup withholding. PAYER'S REQUEST FOR ------------------------------------------------------------------------------------ TAXPAYER IDENTIFICATION NUMBER ("TIN") CERTIFICATION INSTRUCTIONS -- You must cross out item (2) in Part 2 above if you have been notified by the IRS that you are subject to backup withholding because of under reporting interest or dividends on your tax return. However, if after being notified by the IRS that you were subject to backup withholding you received another notification from the IRS stating that you are no longer subject to backup withholding, do not cross out such item (2). THE INTERNAL REVENUE SERVICE DOES NOT REQUIRE YOUR CONSENT TO ANY PROVISION OF THIS DOCUMENT OTHER THAN THE CERTIFICATIONS REQUIRED TO AVOID BACKUP WITHHOLDING. ------------------------------------------------------------------------------------ SIGNATURE --------------------------------- PART 3 -- DATE --------------------------------, 2000 Awaiting TIN [ ] NAME -------------------------------------- (Please Print) ADDRESS ----------------------------------- (Please Print) - ----------------------------------------------------------------------------------------------------------------------
THIS SUBSTITUTE FORM W-9 MUST BE COMPLETED AND SIGNED NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 31% OF ANY CASH PAYMENTS MADE TO YOU. YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF SUBSTITUTE FORM W-9. CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration office or (b) I intend to mail or deliver an application in the near future. I understand that, if I do not provide a taxpayer identification number by the time of payment, 31% of all reportable payments made to me will be withheld, but I will be refunded if I provide a certified Taxpayer Identification Number within 60 days. Signature -------------------------------------- Date ------------------ Name (Please Print) --------------------------- Address (Please Print) -------------------------
18 NORTHERN BORDER PARTNERS, L.P. NOTICE OF GUARANTEED DELIVERY (NOT TO BE USED FOR SIGNATURE GUARANTEE) As set forth in the Prospectus dated , 2000 (the "Prospectus") in the section entitled "The Exchange Offer -- Procedures for Tendering Outstanding Notes" and in the accompanying Letter of Transmittal (the "Letter of Transmittal") and Instruction 2 thereto, this form or one substantially equivalent hereto must be used to accept the Exchange Offer if certificates representing 8 7/8% Senior Notes due 2010 of Northern Border Partners, L.P. (the "Existing Notes") are not immediately available or time will not permit such holder's Existing Notes or other required documents to reach the Exchange Agent, or complete the procedures for book-entry transfer, prior to the Expiration Date (as defined in the Prospectus) of the Exchange Offer. This form may be delivered by hand or sent by overnight courier, facsimile transmission or registered or certified mail to the Exchange Agent and must be received by the Exchange Agent prior to 5:00 p.m., New York City time on , 2000. TO BANK ONE TRUST COMPANY, NA (THE "EXCHANGE AGENT") By Registered or Certified Mail: Inquiries by Telephone or Confirmations: Bank One Trust Company, NA (800) 524-9472 1 Bank One Plaza Mail Code IL1-0126 By Facsimile Transmission Chicago, Illinois 60670 (for Eligible Institutions Only): Attention: Sharon McGrath Bank One Trust Company, NA (312) 407-1708 Attention: Corporate Trust Services
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. This form is not to be used to guarantee signatures. If a signature an a Letter of Transmittal is required to be guaranteed by an "Eligible Institution" under the instructions thereto, such signature guarantee must appear in the applicable space provided in the signature box on the Letter of Transmittal. 19 Ladies and Gentlemen: The undersigned hereby tender(s) to Northern Border Partners, L.P. the principal amount of the Existing Notes listed below, upon the terms of and subject to the conditions set forth in the Prospectus and the related Letter of Transmittal and the instructions thereto (which together constitute the "Exchange Offer"), receipt of which is hereby acknowledged, pursuant to the guaranteed delivery procedures set forth in the Prospectus, as follows:
AGGREGATE PRINCIPAL AMOUNT PRINCIPAL AMOUNT TENDERED CERTIFICATE NOS. REPRESENTED BY CERTIFICATE(S) (MUST BE IN INTEGRAL MULTIPLES OF $1,000) - ---------------- ----------------------------- ----------------------------------------- - ------------------------ ------------------------------------------ ------------------------------------------ - ------------------------ ------------------------------------------ ------------------------------------------ - ------------------------ ------------------------------------------ ------------------------------------------ - ------------------------ ------------------------------------------ ------------------------------------------ - ------------------------ ------------------------------------------ ------------------------------------------
This Notice of Guaranteed Delivery must be signed by the Holder(s) exactly as their name(s) appear on certificates for Existing Notes or on a security position listing as the owner of Existing Notes, or by person(s) authorized to become Holder(s) by endorsements and documents transmitted with this Notice of Guaranteed Delivery. SIGNATURE - -------------------------------------------------------------------------------- Sign Here - -------------------------------------------------------------------------------- Account Number - -------------------------------------------------------------------------------- Principal Amount Tendered (must be in integral multiples of $1,000) - -------------------------------------------------------------------------------- Number and Street or P.O. Box - -------------------------------------------------------------------------------- City, State, Zip Code - -------------------------------------------------------------------------------- Signature(s) Dated: ____________________, 2000 The Book-Entry Transfer Facility Account Number (if the Existing Notes will be tendered by book-entry transfer) - -------------------------------------------------------------------------------- 20 GUARANTY OF DELIVERY (NOT TO BE USED FOR SIGNATURE GUARANTEE) The undersigned, a member firm of a registered national securities exchange, a member of the National Association of Securities Dealers, Inc., or a commercial bank or trust company having an office in the United States, or otherwise an "eligible guarantor institution" within the meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended, guarantees that, within three (3) New York Stock Exchange trading days from the date of this Notice of Guaranteed Delivery, a properly completed and validly executed Letter of Transmittal (or a facsimile thereof), together with Existing Notes tendered hereby in proper form for transfer (or confirmation of the book-entry transfer of such Existing Notes into the Exchange Agent's account at The Depository Trust Company pursuant to the procedures for book-entry transfer set forth in the Prospectus under the caption "The Exchange Offer -- Procedures for Tendering Outstanding Notes") and all other required documents will be deposited by the undersigned with the Exchange Agent at its address act forth above. The institution that completes this form must communicate the guarantee to the Exchange Agent and must deliver the Letter of Transmittal and Existing Notes to the Exchange Agent within the time period shown herein. Failure to do so could result in a financial loss to the undersigned. - --------------------------------------------------- --------------------------------------------------- Name of Firm Authorized Signature - --------------------------------------------------- --------------------------------------------------- Address Title - --------------------------------------------------- Name ---------------------------------------------- Zip Code Please Type or Print - --------------------------------------------------- Dated____________________, 2000 Area Code and Tel. No.
NOTE: DO NOT SEND CERTIFICATES REPRESENTING EXISTING NOTES WITH THIS FORM. CERTIFICATES REPRESENTING EXISTING NOTES SHOULD BE SENT ONLY WITH A LETTER OF TRANSMITTAL. -----END PRIVACY-ENHANCED MESSAGE-----