MEMBERSHIP INTEREST PURCHASE AGREEMENT by and between NORTHERN BORDER PIPELINE COMPANY and TRANSCANADA PIPELINE USA LTD. Dated as of August 28, 2008
Exhibit
10.1
Execution
Copy
______________________________________________________________________________
by
and between
NORTHERN
BORDER PIPELINE COMPANY
and
TRANSCANADA
PIPELINE USA LTD.
Dated
as of August 28, 2008
______________________________________________________________________________
HOU:2825092.15
TABLE
OF CONTENTS
Page
| ARTICLE I DEFINITIONS |
1
|
| ARTICLE II AGREEMENT TO SELL AND PURCHASE |
4
|
|
|
2.1
|
Sale
and Purchase
|
4
|
|
|
2.2
|
Closing
|
5
|
|
|
2.3
|
Effective
Date; Development Costs
|
5
|
|
|
2.4
|
Conditions
to Obligations of Purchaser
|
5
|
|
|
2.5
|
Conditions
to Obligations of Seller
|
6
|
|
|
2.6
|
Purchase
Price Allocation for Tax Purposes
|
6
|
| ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER |
6
|
|
|
3.1
|
Organization
|
6
|
|
|
3.2
|
Organization
and Qualification of Bison
|
6
|
|
|
3.3
|
Authority
|
7
|
|
|
3.4
|
Ownership
|
7
|
|
|
3.5
|
No
Conflicts or Violations; Consents
|
7
|
|
|
3.6
|
Certain
Proceedings
|
8
|
|
|
3.7
|
Brokers
or Finders
|
8
|
|
|
3.8
|
Taxes
|
8
|
| ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER |
8
|
|
|
4.1
|
Organization
|
8
|
|
|
4.2
|
Authority
|
8
|
|
|
4.3
|
No
Conflicts or Violations; Consents
|
8
|
|
|
4.4
|
Certain
Proceedings
|
9
|
|
|
4.5
|
Brokers
or Finders
|
9
|
|
|
4.6
|
Investment
Intent; Access
|
9
|
| ARTICLE V COVENANTS OF THE PARTIES |
9
|
|
|
5.1
|
Expenses
|
9
|
|
|
5.2
|
Pathfinder
Project
|
10
|
|
|
5.3
|
Northern
Border Pipeline Company Capacity
|
10
|
|
|
5.4
|
Discussions
with Shippers
|
10
|
|
|
5.5
|
Further
Assurances
|
10
|
|
|
5.6
|
Tax
Matters
|
10
|
| ARTICLE VI INDEMNIFICATION; REMEDIES |
12
|
|
|
6.1
|
Survival
of Representations, Warranties and Covenants
|
12
|
|
|
6.2
|
Indemnification
and Payment of Damages by Seller
|
13
|
|
|
6.3
|
Indemnification
and Payment of Damages by Purchaser
|
13
|
|
|
6.4
|
Limitations
on Indemnification
|
13
|
|
|
6.5
|
No
Security Holder Liability
|
13
|
HOU:2825092.15
i
| ARTICLE VII GENERAL PROVISIONS |
14
|
|
|
7.1
|
Public
Announcements
|
14
|
|
|
7.2
|
Confidentiality
|
14
|
|
|
7.3
|
Notices
|
14
|
|
|
7.4
|
Waiver
|
15
|
|
|
7.5
|
Entire
Agreement and Modification
|
15
|
|
|
7.6
|
Assignments;
Successors; No Third-Party Rights
|
15
|
|
|
7.7
|
Severability
|
16
|
|
|
7.8
|
Article
and Section Headings; Construction
|
16
|
|
|
7.9
|
Time
of Essence
|
16
|
|
|
7.10
|
Enforcement
|
16
|
|
|
7.11
|
Governing
Law
|
16
|
|
|
7.12
|
Counterparts
|
17
|
|
|
7.13
|
No
Other Representations; Disclaimers
|
17
|
|
|
7.14
|
Waiver
of Certain Damages
|
17
|
HOU:2825092.15
ii
THIS MEMBERSHIP INTEREST PURCHASE
AGREEMENT (this “Agreement”) is made
and entered into as of August 28, 2008, by and between Northern Border Pipeline
Company, a Texas general partnership (“Seller”), and TransCanada PipeLine USA Ltd.,
a Nevada corporation (“Purchaser”).
RECITALS
WHEREAS, Seller is the sole
member of Bison Pipeline LLC, a Delaware limited liability company (“Bison”), and desires
to sell its 100% membership interest in Bison (the “Interest”) to
Purchaser on the terms and conditions set forth herein; and
WHEREAS, Purchaser desires to
purchase the Interest from Seller on the terms and conditions set forth herein;
and
NOW, THEREFORE, in
consideration of the foregoing recitals and the mutual promises,
representations, warranties, and covenants hereinafter set forth and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
AGREEMENT
ARTICLE
I
DEFINITIONS
For
purposes of this Agreement, the following terms have the meanings specified or
referred to in this Article
I.
“Affiliate” means,
with respect to any Person, (a) each Person controlled by such Person, (b) each
Person that controls such Person and (c) each Person that is under common
control with such Person.
“Alternate Agreements”
has the meaning given to such term in Section
2.1.
“Anadarko” means
Anadarko Energy Services Company, a Delaware corporation.
“Approval Date” has
the meaning given to such term in Section
5.2.
“Bison” has the
meaning given to such term in the recitals.
“Bison Agreement” has
the meaning given to such term in Section
3.2.
“Bison Open Season”
means the terms and conditions defining the service to be provided on the Bison
Project and posted on the Seller’s website.
“Bison Project” means
the pipeline project being developed by Bison to transport natural gas from the
Powder River Basin to the Seller’s pipeline system and having FERC Docket No.
PF08-23-000.
1
“Closing” has the
meaning given to such term in Section
2.2.
“Closing Date” has the
meaning given to such term in Section
2.2.
“Code” means the
Internal Revenue Code of 1986, as amended.
“Consent” means any
approval, consent, permit, ratification, waiver, order or other
authorization.
“Contemplated
Transactions” means the purchase and sale of the Interest and the
performance by Seller and Purchaser of their other obligations under this
Agreement.
“Damages” means all
damages, penalties, fines, costs, amounts paid in settlement, Liabilities,
obligations, Taxes, liens, losses, expenses and fees (including court costs and
costs of investigation, defense and reasonable attorneys’ fees and expenses)
actually incurred, but specifically excluding special, incidental, consequential
and punitive damages, as reduced by any insurance recoveries received in respect
thereof.
“Dollars” means United
States Dollars.
“FERC’ means the
Federal Energy Regulatory Commission.
“Governmental Body”
means any:
| (a) | nation, state, county, city, town, district or other jurisdiction of any nature; | |
| (b) | federal, state, local, municipal, foreign or other government; | |
|
|
(c)
|
governmental
or quasi-governmental authority of any nature (including any governmental
agency, branch, department, official or entity and any court or other
tribunal); or
|
|
|
(d)
|
body
exercising, or entitled to exercise, any administrative, executive,
judicial, legislative, police, regulatory or taxing authority or power of
any nature.
|
“Indemnity Period” has
the meaning given to such term in Section
6.1.
“Initial Payment” has
the meaning given to such term in Section
2.1.
“Interest” has the
meaning given to such term in the recitals.
“Knowledge” means,
with respect an individual’s knowledge of a particular fact or other matter,
that such individual is actually aware of such fact or other matter, and with
respect to the knowledge of a Person other than an individual of a particular
fact or other matter, that any individual who is serving as a director, manager
or executive officer of such Person is actually aware of such fact or other
matter.
HOU:2825092.15
2
“Legal Requirement”
means any federal, state, local, municipal, foreign, international or other
administrative order, constitution, law, ordinance, regulation, statute or
treaty applicable to a Person.
“Liability” means any
liability (whether absolute or contingent, liquidated or unliquidated, or due or
to become due, or otherwise), including any liability for Taxes.
“Lien” has the meaning
given to such term in Section
3.4.
“MERC” means Minnesota
Energy Resources Corporation, a Delaware corporation.
“MMBtu” means one
million British thermal units.
“MMcf” means one
million cubic feet of natural gas.
“Pathfinder Project”
means the pipeline construction and development project proposed by Purchaser
that upon completion will transport natural gas from Meeker, Colorado and/or
Wamsutter, Wyoming to the Seller’s pipeline system, terminating at a point near
the Seller’s compression station in ▇▇▇▇▇▇ County, North Dakota and that has
FERC Docket No. PF08-22-000.
“Person” means any
individual, corporation (including any non-profit corporation), general or
limited partnership, limited liability company, joint stock company, joint
venture, estate, trust, association, organization, other entity or Governmental
Body.
“Post-Closing Payment”
has the meaning given to such term in Section
2.1.
“Post-Effective Date
Development Costs” has the meaning given to such term in Section
2.3.
“Pre-Effective Date
Development Costs” has the meaning given to such term in Section
2.3.
“Proceeding” means any
action, arbitration, audit, hearing, investigation, litigation or suit (whether
civil, criminal, or administrative) commenced, brought, conducted or heard by or
before, or otherwise involving, any Governmental Body or
arbitrator.
“Purchase Price” has
the meaning given to such term in Section
2.1.
“Purchaser” has the
meaning given to such term in the preamble.
“Representative”
means, with respect to a particular Person, any director, officer, manager,
employee, agent, consultant, advisor or other representative of such Person,
including legal counsel, accountants and financial advisors.
“Securities Act” has
the meaning given to such term in Section
4.6.
“Seller” has the
meaning given to such term in the preamble.
HOU:2825092.15
3
“Tax” means any
federal, state, local, or foreign income, gross receipts, license, payroll,
employment, excise, severance, stamp, occupation, premium, windfall profits,
environmental, customs duties, capital stock, franchise, profits, withholding,
social security (or similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added, alternative or add-on
minimum, estimated or other tax of any kind whatsoever, including any interest,
penalty or addition thereto, whether disputed or not.
“Tax Return” means any
return, declaration, report, claim for refund, or information return or
statement relating to Taxes filed or required to be filed with any taxing
authority, including any schedule or attachment thereto, and including any
amendment thereof.
“Threatened” means
that a demand or statement has been made in writing, or any notice has been
given in writing, asserting that a claim, Proceeding, dispute, action or other
matter may be commenced or taken in the future.
“Transfer Taxes” has
the meaning given to such term in Section
5.6(b).
“▇▇▇▇▇▇▇▇” means
▇▇▇▇▇▇▇▇ Gas Marketing, Inc., a Delaware corporation
ARTICLE
II
AGREEMENT
TO SELL AND PURCHASE
2.1 Sale and
Purchase.
Subject
to the terms and conditions hereof, at the Closing Seller hereby agrees to sell
the Interest to Purchaser, and Purchaser agrees to purchase the Interest from
Seller, for a total purchase price of Twenty Million Dollars (US$20,000,000)
(the “Purchase
Price”). Purchaser agrees that it will pay the Purchase Price
as follows: (a) Thirteen Million Five Hundred
Thousand Dollars (US$13,500,000) (the “Initial Payment”)
shall be paid by Purchaser to Seller at the Closing by wire transfer of
immediately available funds to an account designated in writing to Purchaser by
Seller and (b) Six Million Five Hundred
Thousand Dollars (US$6,500,000) (the “Post-Closing
Payment”) shall be paid by Purchaser to Seller, by wire transfer of
immediately available funds to an account designated in writing to Purchaser by
Seller, within ten (10) days of the earlier to occur of (i) the satisfaction,
expiration, termination or waiver by MERC, by August 29, 2008, of the
contingency set forth in MERC’s Anchor Shipper Offer Sheet, which is attached to
Exhibit B to the Precedent Agreement for Firm Natural Gas Transportation Service
dated May 22, 2008 by and between MERC and Bison or (ii) the execution, on or
before the Approval Date, of one or more third-party firm transportation
precedent agreements with an aggregate maximum delivery quantity of at least 50
MMcf per day from the Powder River Basin on terms and conditions no less
favorable than those offered to shippers in the Bison Open Season and having no
material conditions outstanding or not otherwise satisfied, other than
conditions that are within the control of Purchaser (the “Alternate
Agreements”); provided that such Alternate
Agreements may include a firm transportation precedent agreement by MERC to
transport at least 50 MMcf per day on either the Bison Project or the Pathfinder
Project that is a substitute arrangement for that described in clause (i) of
this sentence if such agreement by MERC contains terms and conditions no less
favorable than those offered to shippers in the Bison Open Season and has no
material conditions outstanding or not otherwise satisfied, other than
conditions that are within the control of Purchaser. For the
avoidance of doubt, it is acknowledged and agreed that Purchaser will only be
required to pay the
Post-Closing Payment upon satisfaction of the conditions set forth in either of
clauses (b)(i) or (ii) of this Section 2.1, and that
if the conditions set forth in neither of such clauses are satisfied, the
Purchase Price will consist only of the Initial Payment.
4
2.2 Closing.
The
closing of the sale and purchase of the Interest under this Agreement (the
“Closing”)
shall take place at 10:00 a.m. Omaha, Nebraska time on August 29, 2008, at the
offices of Seller, 13710 FNB Parkway, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other
time or place as Seller and Purchaser may mutually agree (such date is
hereinafter referred to as the “Closing
Date”). At the Closing, subject to the terms and conditions
hereof, Seller and Purchaser will deliver an executed ▇▇▇▇ of Sale and
Assignment and Assumption Agreement substantially in the form of Exhibit A hereto with
respect to the Interest to be purchased at the Closing by Purchaser, upon
payment of the Initial Payment by wire transfer of immediately available funds
to an account designated in writing to Purchaser by Seller.
2.3 Effective Date; Development
Costs.
Regardless
of the Closing Date, the Contemplated Transactions shall have an effective date
of July 31, 2008. Seller shall assume and pay all development costs
and expenses relating to the Bison Project that are incurred by Bison or by
Seller on behalf of Bison at any time prior to 12:00 a.m. CDT on August 1, 2008
(“Pre-Effective Date
Development Costs”). Purchaser shall assume and pay all
reasonable and documented development costs and expenses relating to the Bison
Project that are incurred by Bison or by Seller on behalf of Bison at any time
commencing after 12:00 a.m. CDT on August 1, 2008 (“Post-Effective Date
Development Costs”), provided that the Closing occurs. On or
before the date that is ninety (90) days after the Closing Date, Seller shall
provide to Purchaser a written accounting of all Pre-Effective Date Development
Costs and Post-Effective Date Development Costs, and shall identify those
Post-Effective Date Development Costs already paid by Bison or by Seller on
behalf of Bison. Purchaser shall reimburse Seller, by wire transfer
of immediately available funds to an account designated in writing to Purchaser
by Seller, for all Post-Effective Date Development Costs paid by Bison or by
Seller on behalf of Bison within ten (10) days of Seller’s receipt of such
written accounting.
2.4 Conditions to Obligations of
Purchaser.
Purchaser’s
obligation to purchase the Interest at the Closing is subject to the
satisfaction or waiver, at or prior to the Closing Date, of the following
conditions:
(a) Approval by
Purchaser. The Board of Directors of Purchaser shall have
authorized and approved (a) the execution, delivery and performance by Purchaser
of this Agreement and the Contemplated Transactions and (b) the Bison
Project. Purchaser acknowledges that this condition has been
satisfied.
(b) Certain
Proceedings. No Proceeding shall have been commenced against
Seller or Bison that challenges, or may have the effect of preventing, delaying,
making illegal or otherwise interfering with, any of the Contemplated
Transactions.
(c) ONEOK
Letter. Seller shall have delivered to Purchaser a letter from
ONEOK Partners Intermediate Limited Partnership in the form of Exhibit B attached
hereto.
HOU:2825092.15
5
(d) Closing
Documents. Seller shall have delivered to Purchaser, at the
Closing, (i) an Assistant Secretary’s Certificate, reasonably satisfactory to
Purchaser, certifying the approvals described in Section 2.5(a), (ii)
an Officers’ Certificate, signed by two duly authorized officers of the operator
of Seller, stating that the representations and warranties of Seller contained
herein are true and correct as of the Closing Date as if made on the Closing
Date and that Seller has performed all of its covenants and obligations set
forth herein that are to be performed by it at or before the Closing, and (iii)
pursuant to Section 1445 of the Code, a tax certificate that (1) states that
Seller is not a foreign corporation, foreign partnership, foreign trust or
foreign estate and (2) provides Seller’s employer identification number and
address.
2.5 Conditions to Obligations of
Seller.
Seller’s
obligation to sell the Interest at the Closing is subject to the satisfaction or
waiver, on or prior to the Closing Date, of the following
conditions:
(a) Approval by
Seller. The Management Committee of Seller shall have
authorized and approved the execution, delivery and performance by Seller of
this Agreement and the Contemplated Transactions.
(b) Certain
Proceedings. No Proceeding shall have been commenced against
Purchaser that challenges, or may have the effect of preventing, delaying,
making illegal or otherwise interfering with, any of the Contemplated
Transactions.
(c) Closing
Documents. Purchaser shall have delivered to Seller, at the
Closing, (i) a Certificate, reasonably satisfactory to Seller, certifying the
approvals described in Section 2.4(a) and
(ii) an Officers’ Certificate, signed by two duly authorized officers of
Purchaser, stating that the representations and warranties of Purchaser
contained herein are true and correct as of the Closing Date as if made on the
Closing Date and that Purchaser has performed all of its covenants and
obligations set forth herein that are to be performed by it at or before the
Closing.
2.6 Purchase Price Allocation
for Tax Purposes.
Within
one hundred eighty (180) days after the Closing Date, Purchaser shall provide to
Seller a copy of Internal Revenue Service Form 8594 and any required exhibits
thereto with Purchaser’s prepared allocation of the Purchase
Price. Purchaser and Seller agree to make all reasonable efforts to
file all Tax Returns of both Purchaser and Seller consistently with this
allocation.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF SELLER
Seller
represents and warrants to Purchaser that:
3.1 Organization.
Seller is
a general partnership duly formed, validly existing and in good standing under
the laws of the State of Texas.
3.2 Organization and
Qualification of Bison.
Bison is
a limited liability company duly formed, validly existing and in good standing
under the laws of the State of Delaware and is duly authorized to conduct
business, duly registered or qualified and in good standing under the
laws of
each jurisdiction where the nature of its assets or business requires it to be
so authorized, registered or qualified, except where the failure to be so
authorized, registered or qualified would not reasonably be expected to impair
Seller’s ability to consummate the Contemplated Transactions. Bison
has the full limited liability company power and authority to own or hold its
properties and assets and to carry on its business as currently
conducted. Seller has delivered to Purchaser correct and complete
copies of the Certificate of Formation of Bison, the Limited Liability Company
Agreement, dated March 27, 2008, of Bison (the “Bison Agreement”),
and any other organizational documents of Bison.
6
3.3 Authority.
Seller
has the full partnership power and authority to enter into this Agreement and to
perform its obligations hereunder. The execution, delivery and
performance of this Agreement by Seller have been duly and validly authorized by
all necessary partnership action. Assuming the due and valid
authorization, execution and delivery of this Agreement by Purchaser, this
Agreement constitutes the legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, except as such
enforceability may be limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally and (b) laws relating to the
availability of equitable remedies.
3.4 Ownership.
Seller is
the sole member of Bison and the legal and beneficial owner of the Interest,
which has been duly and validly authorized and issued in accordance with the
Bison Agreement; Seller owns such membership interest free and clear of all
liens, encumbrances, security interests, equities, charges or claims
(collectively, “Liens”); and at the
Closing, upon payment of the Purchase Price, Seller will deliver to Purchaser
good, valid and marketable title to the Interest, free and clear of any
Liens. Except (a) as provided in the Bison Agreement, (b) as provided
in Anadarko’s Precedent Agreement for Firm Natural Gas Transportation Service,
dated May 23, 2008, with Bison and (c) for the Contemplated Transactions, there
are no outstanding or authorized options, warrants, purchase rights, conversion
rights, preemptive rights, exchange rights or other contracts or commitments to
sell, subscribe for or purchase any equity interest in Bison, and there are no
restrictions upon the transfer of the Interest.
3.5 No Conflicts or Violations;
Consents.
Neither
the execution and delivery of this Agreement by Seller nor the performance by
Seller of its obligations hereunder (a) conflicts or will conflict with, or
constitutes or will constitute a violation of, the general partnership agreement
of Seller, certificate of formation of Seller or Bison, limited liability
company agreement of Bison or other organizational document of Seller or Bison,
(b) conflicts or will conflict with, constitutes or will constitute a breach of
or default under (or an event that, with notice or lapse of time or both, would
constitute such a breach of or default under), or provides or will provide any
party the right to accelerate, terminate, modify or cancel, any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which Seller or Bison is a party, by which either of them is bound or to
which any of their properties or assets is subject, (c) violates or will violate
any statute, law, ordinance, regulation, order, judgment, decree or injunction
of any court or Governmental Body to which Seller, Bison or any of their
properties or assets may be subject or (d) will result in the creation or
imposition of any Lien upon the Interest or any of the property or assets of
Seller or Bison. Neither Seller nor Bison is required to provide any
notice to or obtain any Consent from any Person in connection with the
consummation
of the Contemplated Transactions, except for such notices or Consents where the
failure to provide such notice or obtain such Consent would not reasonably be
expected to impair its ability to consummate the Contemplated
Transactions.
7
3.6 Certain
Proceedings.
There is
no pending Proceeding that has been commenced against Seller or Bison that
challenges, or may have the effect of preventing, delaying, making illegal or
otherwise interfering with, any of the Contemplated Transactions. To
the Knowledge of Seller, no such Proceeding has been Threatened.
3.7 Brokers or
Finders.
Seller
and its officers and agents have incurred no obligation or liability, contingent
or otherwise, for brokerage or finders’ fees or agents’ commissions or other
similar payment in connection with this Agreement.
3.8 Taxes.
Except as
would not reasonably be expected to have a material adverse effect, (a) Seller
has filed, or caused to be filed, all Tax Returns required to be filed by Bison
or with respect to its assets or operations on a timely basis (taking into
account all extensions of due dates), (b) all such Tax Returns were complete and
correct, (c) all Taxes owed by Bison which are or have become due have been
timely paid in full, (d) there are no Liens on the Interest or any of Bison’s
assets that arose in connection with any failure (or alleged failure) to pay any
Tax on any such assets or with respect to the Interest, other than Liens for
Taxes not yet due and payable, (e) there is no pending action, proceeding or, to
the Knowledge of Seller, investigation for assessment or collection of Taxes and
no Tax assessment, deficiency or adjustment has been asserted or proposed with
respect to Bison or its assets, (f) Bison, since its inception, has been
disregarded as an entity separate from Seller for federal income tax purposes
under Treasury Regulations 3017701-2 and -3 and any comparable provisions of
state and local jurisdictions that permit such treatment and (g) there is no tax
allocation agreement or tax sharing agreement to which Bison is a
party.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
Purchaser
represents and warrants to Seller as follows:
4.1 Organization.
Purchaser
is a corporation duly organized, validly existing, and in good standing under
the laws of the State of Nevada.
4.2 Authority.
Purchaser
has the full corporate power and authority to enter into this Agreement and to
perform its obligations hereunder. The execution, delivery and
performance of this Agreement by Purchaser have been duly and validly authorized
by all necessary corporate action. Assuming the due and valid
authorization, execution and delivery of this Agreement by Seller, this
Agreement constitutes the legal, valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms, except as such
enforceability may be limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally and (b) laws relating to the
availability of equitable remedies.
4.3 No Conflicts or Violations;
Consents.
Neither
the execution and delivery of this Agreement by Purchaser nor the performance by
Purchaser of its obligations hereunder (a)conflicts
or will conflict with, or constitutes or will constitute a violation of, the
certificate or articles of incorporation, bylaws or other organizational
document of Purchaser, (b) conflicts or will conflict with, constitutes or will
constitute a breach of or default under (or an event that, with notice or lapse
of time or both, would constitute such a breach of or default under), or
provides or will provide any party the right to accelerate, terminate, modify or
cancel, any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which Purchaser is a party, by which Purchaser is
bound or to which any of its properties or assets is subject, (c) violates or
will violate any statute, law, ordinance, regulation, order, judgment, decree or
injunction of any court or Governmental Body to which Purchaser or any of its
properties or assets may be subject or (d) will result in the creation or
imposition of any Lien upon any of the property or assets of
Purchaser. Purchaser is not required to provide any notice to or
obtain any Consent from any Person in connection with the consummation of the
Contemplated Transactions, except for such notices or Consents where the failure
to provide such notice or obtain such Consent would not reasonably be expected
to impair its ability to consummate the Contemplated Transactions.
8
4.4 Certain
Proceedings.
There is
no pending Proceeding that has been commenced against Purchaser that challenges,
or may have the effect of preventing, delaying, making illegal or otherwise
interfering with, any of the Contemplated Transactions. To the
Knowledge of Purchaser, no such Proceeding has been Threatened.
4.5 Brokers or
Finders.
Purchaser
and its officers and agents have incurred no obligation or liability, contingent
or otherwise, for brokerage or finders’ fees or agents’ commissions or other
similar payment in connection with this Agreement.
4.6 Investment Intent;
Access.
Purchaser
acknowledges that (a) the Interest has not been registered under the Securities
Act of 1933, as amended (the “Securities Act”), or
any state securities laws, and (b) Seller has disclosed to Purchaser that the
Interest may not be resold absent such registration or unless an exemption from
registration is available. Purchaser is acquiring the Interest for
its own account, for investment purposes only and not with a view to its
distribution within the meaning of the Securities Act. Purchaser has
such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of the Contemplated
Transactions. Seller has made available to Purchaser and its
Representatives the opportunity to ask questions of the officers and
Representatives of Seller, to engage in diligence and to acquire such additional
information about the business, assets and financial condition of Seller as
Purchaser has requested, and all such requested information has been received by
Purchaser.
ARTICLE
V
COVENANTS
OF THE PARTIES
5.1 Expenses.
Except as
contemplated by Section 2.3, each
party shall bear its own expenses incurred in connection with the preparation,
execution and performance of this Agreement and the Contemplated Transactions,
including all fees and expenses of agents, counsel, accountants and other
Representatives.
HOU:2825092.15
9
5.2 Pathfinder
Project.
Provided
that (a) Bison has entered into firm transportation precedent agreements with
respect to the Bison Project with an aggregate maximum delivery quantity of at
least 405 MMcf per day and that have no material conditions outstanding or not
otherwise satisfied by August 31, 2008 (unless otherwise extended by Purchaser),
other than conditions that are within the control of Purchaser, and (b)
Purchaser has not, by September 30, 2008 (or such other later date agreed to by
the Bison and Pathfinder shippers) (the “Approval Date”),
received management approval to proceed with the Pathfinder Project, Purchaser
will, subject to the rights and obligations of Bison set forth in the Precedent
Agreements for Firm Natural Gas Transportation Service executed with the Bison
shippers, use commercially reasonable efforts to complete the Bison Project and
place it in-service during the fourth quarter of 2010.
5.3 Northern Border Pipeline
Company Capacity.
Subject
to Seller’s tariff and applicable law, Seller shall use commercially reasonable
efforts to assist Purchaser after the Closing by marketing existing capacity on
Seller’s pipeline system and the potential expansion of its pipeline system to
shippers, including, but not limited to, shippers on the Bison Project and/or
the Pathfinder Project. Commercially reasonable efforts shall consist
of (a) the continuation at least until September 30, 2008 of the offer to all
shippers of a discounted reservation rate on Seller’s pipeline system of US$0.23
per MMBtu for transportation from Port of ▇▇▇▇▇▇ to Ventura for a ten (10) year
commitment, (b) initiating the applicable right of first refusal process for
capacity on Seller’s pipeline system to Chicago during the month of September
2008 and (c) Seller offering the market, including, but not limited to, shippers
on the Bison Project and/or the Pathfinder Project, an open season having a bid
period during the month of August 2008 proposing the expansion of Seller’s
pipeline system for transportation on Seller’s pipeline system to Chicago for a
ten (10) year commitment with a targeted in-service date of the fourth quarter
of 2010, or as soon as practicable thereafter. Such capacity shall be
offered at a rate that the Seller reasonably believes to be marketable; provided that Seller’s
obligation under this Agreement to undertake any such expansion shall be subject
to a fair and reasonable return analysis by Seller relating to the expected
economics of any such expansion and the approval of its Management
Committee.
5.4 Discussions with
Shippers.
Seller
shall assist Purchaser in discussions with the existing shippers on the Bison
Project in order to assist with the satisfaction of the outstanding conditions
precedent under such shippers’ firm transportation precedent agreements and
encourage their participation in the Pathfinder Project; provided that Seller’s
obligations pursuant to this Section 5.4 shall be
expressly limited to participating in conversations and shall not include any
obligation to undertake or incur any liabilities or expenses or to make
concessions of any kind to shippers.
5.5 Further
Assurances.
Each
party agrees (a) to furnish upon request to the other party such further
information, (b) to execute and deliver to the other party such other documents
and (c) to do such other acts and things, in each case as the other party may
reasonably request for the purpose of carrying out the intent of this Agreement
and the Contemplated Transactions.
5.6 Tax
Matters.
The
following provisions shall govern the allocation of responsibility between
Seller and Purchaser for certain Tax matters following the Closing
Date:
HOU:2825092.15
10
(a) Tax
Returns.
(i) Seller
shall prepare or cause to be prepared and file or cause to be filed all Tax
Returns for Bison for periods ending on or before the Closing Date that are
required to be filed after the Closing Date, and shall be responsible for the
timely payment (and entitled to any refund) of Taxes due with respect to the
period covered by such Tax Returns.
(ii) Seller
shall prepare or cause to be prepared and file or cause to be filed any Tax
Returns of Bison for periods which begin before the Closing Date and end after
the Closing Date, shall furnish a copy of such Tax Return to
Purchaser. Seller shall be responsible for the timely payment of
Taxes due with respect to the period covered by such Tax Return allocable to the
period prior to and including the Closing Date, and Purchaser shall be
responsible for the timely payment of Taxes due with respect to the period after
the Closing Date.
(iii) To
the extent permitted by law or administrative practice, the taxable year of
Bison shall end on and include the Closing Date. Whenever it is
necessary to determine the liability for Taxes of Bison for a portion of a
taxable year or period that begins before and ends after the Closing Date, the
determination of the Taxes for the portion of the year or period ending on, and
the portion of the year or period beginning after, the Closing Date shall be
determined by assuming that the taxable year or period ended on and included the
Closing Date, except that exemptions, allowances or deductions that are
calculated on an annual basis and annual property taxes shall be prorated on the
basis of the number of days in the annual period elapsed through the Closing
Date as compared to the number of days in the annual period elapsing after the
Closing Date.
(iv) Any
Tax Return to be prepared pursuant to the provisions of this Section 5.6 shall be
prepared in a manner consistent with practices followed in prior years with
respect to similar Tax Returns, except for changes required by changes in law or
fact. Purchaser shall not file an amended Tax Return for any period
ending on or prior to the Closing Date without the consent of Seller, which
consent shall not be unreasonably withheld or delayed.
(b) Transfer
Taxes. Purchaser shall be responsible for the payment of all
excise, sales, use, transfer (including real property transfer or gains), stamp,
documentary, filing, recordation and other similar taxes, together with any
interest, additions or penalties with respect thereto and any interest in
respect of such additions or penalties, resulting directly from the Contemplated
Transactions (collectively, “Transfer
Taxes”).
(c) Access to
Information. After the Closing Date, Seller shall grant to
Purchaser (or its designees) access at all reasonable times to all of the
information, books, and records relating to Bison within the possession of
Seller (including work papers and correspondence with taxing authorities), and
shall afford Purchaser (or its designees) the right (at Purchaser's expense) to
take
11
extracts
therefrom and to make copies thereof, to the extent reasonably necessary to
permit Purchaser (or its designees) to prepare Tax Returns and to conduct
negotiations with taxing authorities. After the Closing Date,
Purchaser shall grant or cause Bison to grant to Seller (or its designees)
access at all reasonable times to all of the information, books and records
relating to Bison within the possession of Purchaser or Bison (including work
papers and correspondence with taxing authorities), and shall afford Seller (or
its designees) the right (at Seller’s expense) to take extracts therefrom and to
make copies thereof, to the extent reasonably necessary to permit Seller (or its
designees) to prepare Tax Returns and to conduct negotiations with taxing
authorities.
(d) Survival. Anything
to the contrary in this Agreement notwithstanding, the representations,
warranties, covenants, agreements, rights and obligations of the parties with
respect to any Tax matter covered by this Agreement shall survive the Closing
and shall not terminate until ninety (90) days after the expiration of the
applicable statutes of limitations (including all periods of extension and
tolling) applicable to such Tax matter.
(e) Conflict. In
the event of a conflict between the provisions of this Section 5.6 and any
other provisions of this Agreement, the provisions of this Section 5.6 shall
control.
(f) Tax
Indemnity.
(i) Seller
shall be liable for, and shall indemnify and hold Bison and Purchaser and its
Affiliates harmless from, any Taxes (other than Transfer Taxes) (1) imposed on
or incurred by or with respect to Bison or its assets with respect to the period
prior to and including the Closing Date, (2) attributable to a breach by Seller
of any covenant with respect to Taxes in this Agreement or (3) attributable to a
breach of Seller’s representations and warranties in Section
3.8.
(ii) Purchaser
shall be liable for, and shall indemnify and hold Seller and its Affiliates
harmless from, any Taxes (including Transfer Taxes) attributable to a breach by
Purchaser of any covenant with respect to Taxes in this Agreement.
(iii) If
Purchaser or its Affiliates receive a refund of any Taxes that Seller is
responsible for hereunder, or if Seller or its Affiliates receive a refund of
any Taxes that Purchaser is responsible for hereunder, the party receiving such
refund shall, within ninety (90) days after receipt of such refund, remit it to
the party who has responsibility for such Taxes hereunder. The
parties shall cooperate in order to take all necessary steps to claim any such
refund.
ARTICLE
VI
INDEMNIFICATION;
REMEDIES
6.1 Survival of Representations,
Warranties and Covenants.
The
representations, warranties and covenants set forth in this Agreement shall
survive until the expiration of the period (the “Indemnity Period”)
that commences on the Closing Date and terminates on the date that is
one hundred eighty (180) days after the Closing Date, at which time they will
expire; provided,
however, that the Indemnity Period with respect to the covenant set forth
in Section 5.2
shall extend until January 15, 2011; and provided, further, that the
Indemnity Period with respect to the representations and warranties set forth in
Section 3.8 and
the covenants set forth in Section 5.6 shall
extend until ninety (90) days after the expiration of the applicable statute of
limitations. Neither party shall have any liability (for
indemnification or otherwise) with respect to any representation or warranty, or
any covenant or obligation to be performed or complied with by it hereunder,
unless on or before the expiration or termination of the Indemnity Period, the
other party notifies such party of a claim, specifying the factual basis of that
claim in reasonable detail to the extent then known by it.
12
6.2 Indemnification and Payment
of Damages by Seller.
Subject
to the limitations set forth in this Article VI, Seller
shall indemnify Purchaser and its Representatives and Affiliates for, shall hold
Purchaser and its Representatives and Affiliates harmless from, and shall pay to
Purchaser and its Representatives and Affiliates the amount of, any Damages
arising from or in connection with (a) any inaccuracy in or breach of any
representation or warranty made by Seller in this Agreement or (b) any breach of
any covenant or agreement of Seller in this Agreement.
6.3 Indemnification and Payment
of Damages by Purchaser.
Subject
to the limitations set forth in this Article VI, Purchaser
shall indemnify Seller and its Representatives and Affiliates for, shall hold
Seller and its Representatives and Affiliates harmless from, and shall pay to
Seller and its Representatives and Affiliates the amount of, any Damages arising
from or in connection with (a) any inaccuracy in or breach of any representation
or warranty made by Purchaser in this Agreement or (b) any breach of any
covenant or agreement of Purchaser in this Agreement.
6.4 Limitations on
Indemnification.
Neither
party shall have any liability (for indemnification or otherwise) with respect
to any representation, warranty, covenant or agreement made in this Agreement
until the total of all Damages asserted by the other party with respect to all
such matters exceeds $500,000 in the aggregate, and then the liable party shall
be liable for such Damages only to the extent they exceed such
amount. The limitations set forth in the preceding sentence shall not
apply to a breach of the representations and warranties set forth in Section 3.8 or the
covenants set forth in Section 5.6, any
fraudulent representations and warranties made in this Agreement or any willful
breach of any covenant or agreement made in this Agreement, and the liable party
shall be liable for all Damages with respect thereto. In no event
shall the aggregate liability of either party for breach of its representations,
warranties, covenants and agreements exceed fifteen percent (15%) the Purchase
Price, except in the case of fraud or a breach of representations and warranties
set forth in Section
3.8 or the covenants set forth in Section
5.6.
6.5 No Security Holder
Liability.
The
parties acknowledge that the stockholders, members, and other security holders
of Purchaser and Seller are not parties to this Agreement and that the
representations, warranties, covenants and agreements made in this Agreement are
provided only by Seller or Purchaser, as the case may be, to the
other. The parties agree that neither party shall have recourse
(including for indemnification or otherwise) against any officer, director,
stockholder, member, manager or security holder of the other party under or in
connection with this Agreement.
HOU:2825092.15
13
ARTICLE
VII
GENERAL
PROVISIONS
7.1 Public
Announcements.
The
initial press release or releases to be issued in connection with the
Contemplated Transactions shall be agreed upon by the parties prior to the
issuance thereof. Otherwise, prior to the Closing, neither party
shall, without the other party’s prior written consent (which shall not be
unreasonably withheld or delayed) or unless permitted by the Confidentiality
Agreement, dated July 18, 2008, between the parties or any amendments thereto or
waivers therefrom, make any disclosure concerning this Agreement or the
Contemplated Transactions to any Person other than (a) their respective members,
managers, officers, directors or employees who have a need to know in connection
with this Agreement or (b) their respective counsel, public accountants and
financial advisors.
7.2 Confidentiality.
. Each
party hereto shall hold, and shall cause its Representatives to hold, in strict
confidence, unless compelled to disclose by judicial or administrative process
or, in the opinion of its counsel, by other Legal Requirements, and not use for
its own advantage, any information about the other provided in or pursuant to
this Agreement, except to the extent that such information can be shown to have
been generally available to the public other than as a result of a disclosure by
such party or its Representatives.
7.3 Notices.
All
notices, consents, waivers and other communications under this Agreement must be
in writing and shall be deemed to have been duly given when (a) delivered by
hand (with written confirmation of receipt), (b) sent by facsimile transmission
(with written confirmation of receipt), provided that a copy is also mailed or
(c) received by the addressee, if sent by a nationally recognized overnight
delivery service (receipt requested), in each case to the addresses and
facsimile numbers set forth below (or to such other addresses and facsimile
numbers as a party may designate by notice to the other party):
Seller:
Northern
Border Pipeline Company
▇.▇. ▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇
▇▇▇▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a
copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇
▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇’▇▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
HOU:2825092.15
14
and
ONEOK
Partners, L.P.
▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General
Counsel
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Purchaser:
TransCanada
PipeLine USA Ltd.
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a
copy (which shall not constitute notice) to:
TransCanada
PipeLines Limited
▇▇▇
▇▇▇
▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
▇▇▇▇▇▇
Attention: ▇▇▇
▇▇▇▇▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
7.4 Waiver.
Neither
the failure to exercise, nor any delay in exercising, any right, power or
privilege by either party under this Agreement shall operate as a waiver of such
right, power, or privilege, and no single or partial exercise of any such right,
power or privilege shall preclude any other or further exercise of such right,
power or privilege or the exercise of any other right, power, or
privilege. To the maximum extent permitted by applicable law, except
as otherwise expressly provided herein, (a) no claim or right arising out of
this Agreement can be discharged by one party, in whole or in part, by a waiver
or renunciation of the claim or right unless in writing signed by the other
party, (b) no waiver that may be given by a party shall be applicable except in
the specific instance for which it is given and (c) no notice to or demand on
one party shall be deemed to be a waiver of any obligation of such party or of
the right of the party giving such notice or demand to take further action
without notice or demand as provided in this Agreement.
7.5 Entire Agreement and
Modification.
This
Agreement supersedes all prior agreements between the parties with respect to
its subject matter and constitutes a complete and exclusive statement of the
terms of the agreement between the parties with respect to its subject
matter. This Agreement may not be amended except by a written
agreement executed by each of the parties.
7.6 Assignments; Successors; No
Third-Party Rights.
Neither
party may assign any of its rights under this Agreement without the prior
consent of the other party; provided that Purchaser may
assign its rights to any Affiliate of Purchaser without Seller’s consent so long
as Purchaser
remains obligated to Seller pursuant to the terms and conditions of this
Agreement and such Affiliate expressly assumes the obligations of Purchaser
hereunder. Any attempted assignment of this Agreement or any of the
rights hereunder in violation of the foregoing shall be voidable by the
non-assigning party. Subject to the preceding sentences, this
Agreement will apply to, be binding in all respects upon, and inure to the
benefit of the successors and permitted assigns of the
parties. Nothing expressed or referred to in this Agreement will be
construed to give any Person other than the parties to this Agreement any legal
or equitable right, remedy or claim under or with respect to this Agreement or
any provision of this Agreement. This Agreement and all of its
provisions and conditions are for the sole and exclusive benefit of the parties
to this Agreement and their successors and permitted assigns.
15
7.7 Severability.
If any
provision of this Agreement is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Agreement shall remain in
full force and effect. Any provision of this Agreement held invalid
or unenforceable only in part or degree shall remain in full force and effect to
the extent not held invalid or unenforceable.
7.8 Article and Section
Headings; Construction.
The
headings of Articles and Sections in this Agreement are provided for convenience
only and will not affect its construction or interpretation. All
references to “Article” or “Section” refer to the corresponding Article or
Section of this Agreement. All words used in this Agreement will be
construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word “including”
does not limit the preceding words or terms. The terms and provisions
of this Agreement represent the results of negotiations between the parties,
each of which has been represented by counsel of its own choosing, and none of
which has acted under duress or compulsion, whether legal, economic or
otherwise. Accordingly, the terms and provisions of this Agreement
shall be interpreted and construed in accordance with their usual and customary
meanings, and the parties hereby waive the application, in connection with the
interpretation and construction of this Agreement, of any rule of law to the
effect that ambiguous or conflicting terms or provisions contained in this
Agreement shall be interpreted or construed against the party whose attorney
prepared the executed draft or any earlier draft of this Agreement.
7.9 Time of
Essence.
With
regard to all dates and time periods set forth or referred to in this Agreement,
time is of the essence.
7.10 Enforcement.
Each
party agrees that it will not bring any action against the other party hereto
relating to this Agreement in any court other than the United States District
Court for the District of Delaware or a Delaware state court located in
Wilmington, Delaware. Each party (a) submits unconditionally to the
exclusive jurisdiction of the state and federal courts located in Wilmington,
Delaware, (b) waives and agrees not to assert any objection to the venue of any
proceeding in any such court and agrees not to assert that any such court
provides an inconvenient forum and (c) waives any right to trial by jury with
respect to any claim or proceeding related to or arising out of this
Agreement.
7.11 Governing
Law.
This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware without regard to conflicts of laws principles
that would apply any other law.
16
7.12 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original copy of this Agreement and all of which, when taken
together, shall be deemed to constitute one and the same agreement.
7.13 No Other Representations;
Disclaimers.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS AGREEMENT, IT IS THE EXPLICIT INTENT AND AGREEMENT OF
EACH PARTY HERETO THAT SELLER IS MAKING NO REPRESENTATION OR WARRANTY
WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
REPRESENTATION OR WARRANTY AS TO CONDITION, MERCHANTABILITY, USAGE, SUITABILITY
OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO THE INTEREST, BISON, ITS
ASSETS, OR ANY PART THEREOF, EXCEPT THOSE REPRESENTATIONS AND WARRANTIES OF
SELLER CONTAINED IN ARTICLE
III
HEREOF. IN PARTICULAR, SELLER MAKES NO REPRESENTATION OR WARRANTY TO
PURCHASER WITH RESPECT TO ANY FINANCIAL PROJECTION, FORECAST OR FORWARD-LOOKING
STATEMENT.
7.14 Waiver of Certain
Damages.
IN NO EVENT WILL EITHER PARTY OR ITS
SECURITY HOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, MEMBERS, MANAGERS, AGENTS OR
REPRESENTATIVES BE LIABLE TO THE OTHER PARTY OR ITS SECURITY HOLDERS, DIRECTORS,
OFFICERS, EMPLOYEES, MEMBERS, MANAGERS, AGENTS OR REPRESENTATIVES UNDER THIS
AGREEMENT AT ANY TIME FOR PUNITIVE, CONSEQUENTIAL, SPECIAL, OR INDIRECT LOSSES
OR DAMAGES, INCLUDING LOSS OF PROFIT, LOSS OF REVENUE OR ANY OTHER SPECIAL OR
INCIDENTAL DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY OR OTHERWISE.
[Signature page
follows]
HOU:2825092.15
17
IN WITNESS WHEREOF, the
parties hereto have executed this Membership Interest Purchase Agreement as of
the date first set forth above.
| SELLER: | ||
| Northern Border Pipeline Company | ||
|
|
By: |
TransCanada Northern Border
Inc.,
|
|
its
Operator
|
||
|
|
|
|
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Title: | Vice President and General Manager | |
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |
| Title: |
Principal
Financial Officer and
Controller
|
|
| PURCHASER: | ||
| TransCanada PipeLine USA Ltd. | ||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| Title: | Treasurer | |
| By: | /s/ ▇▇▇▇▇▇ ▇.▇▇▇▇▇▇▇▇▇ | |
| Assistant Secretary | ||