REPRESENTATIONS AND WARRANTIES OF THE COMPANIES. Each of the Companies represents and warrants to each Underwriter that: (a) The Basic Prospectus included as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto complied when so filed in all material respects with the provisions of the Act and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that this representation and warranty does not apply to statements in or omissions from the Basic Prospectus made in reliance upon and in conformity with information relating to any Underwriters furnished to the Partnership in writing by or on behalf of any Underwriters expressly for use therein. To the best of each of the Companies' knowledge, information and belief, having made reasonable inquiries, the Commission has not issued any order preventing or suspending the use of the Basic Prospectus. (b) The Partnership and the offering of the Offered Units contemplated by this Agreement meet the requirements for using Form S-3 under the Act. The Registration Statement in the form in which it became or becomes effective and also in such form as it may be when any post-effective amendment thereto shall become effective and the Final Prospectus and any supplement or amendment thereto when filed with the Commission under Rule 424(b) and at the Closing Date and if applicable, at the Option Closing Date, complied or will comply in all material respects with the provisions of the Act, and will not at any such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the statements made or to be made in such documents that are covered by Rule 175(b) under the Act were made or will be made with a reasonable basis and in good faith, except that this representation and warranty does not apply to statements in or omissions from the Registration Statement or the Final Prospectus made in reliance upon and in conformity with information relating to any Underwriters furnished to the Partnership in writing by or on behalf of any Underwriters expressly for use therein. (c) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act; any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. (d) The capitalization of the Partnership as of September 30, 2001 was as set forth in the Final Prospectus under "Capitalization." (e) The Offered Units and the limited partner interests represented thereby are authorized by the Partnership Agreement and, when issued, delivered and paid for in accordance with Section 4 hereof, will be validly issued, fully paid and non-assessable (except as such non-assessability may be affected by the matters described under the caption "Summary Description of the Partnership Agreement -- Limited Liability" in Amendment No. 3 to the Partnership's Registration Statement on Form S-1 (Registration No. 33-43425) which is incorporated by reference into the Partnership's Registration Statement on Form 8-A, dated November 14, 1991, as amended by Amendment No. 1 to Form 8-A on Form 8, dated December 9, 1991, and Amendment No. 2 on Form 8-A/A, dated May 2, 1997 (the "Form 8-A")) and free of any preemptive or similar rights (except for the required Capital Contributions (as defined in the Partnership Agreement) to the Partnership to be made by the General Partner pursuant to Section 4.4(c)(ii) of the Partnership Agreement), and the Underwriters will acquire such Units free and clear of any liens, encumbrances, security interests, charges or claims. (f) Each of the Partnership and the Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the Delaware Revised Uniform Limited Partnership Act (the "Delaware Act"), with partnership power and authority to own or lease its properties and to conduct its business as described in the Final Prospectus and with respect to the Partnership, also to act as the sole member of Enbridge Pipelines (North Dakota) LLC, a North Dakota limited liability company ("Enbridge North Dakota"). Enbridge North Dakota has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of North Dakota, with full limited liability company power and authority to own or lease its properties and to conduct its business as described in the Final Prospectus. The Partnership is the sole member of Enbridge North Dakota. (g) The General Partner has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with the corporate power and authority to own or lease its properties, to conduct its businesses and to act as a general partner of the Partnership and the Operating Partnership, in each case as described in the Final Prospectus. (h) The accountants, PricewaterhouseCoopers LLP, who have certified or shall certify the financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), are independent public accountants as required by the Act. (i) The financial statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the Final Prospectus (and any amendment or supplement thereto), present fairly the consolidated financial position, results of operations and changes in financial position of the Partnership and the Operating Partnership on the basis stated in the Registration Statement at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; and the other financial and statistical information and data included or incorporated by reference in the Registration Statement and the Final Prospectus (and any amendment or supplement thereto) are accurately presented and prepared on a basis consistent with such financial statements and the books and records of the Companies. (j) The execution and delivery of, and the performance by each of the Companies of its obligations under this Agreement have been duly and validly authorized by each of such Companies, as the case may be, and this Agreement has been duly executed and delivered by each of the Companies. (k) Neither the offer, sale or delivery of the Offered Units, the execution, delivery or performance of this Agreement, compliance by any of the Companies with the provisions hereof nor consummation by any of the Companies of the transactions contemplated hereby constitutes a breach of, or a default under, the partnership agreement, certificate or articles of incorporation or bylaws, or other organizational documents, of any of the Companies or any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Companies or Enbridge North Dakota is a party or by which any of them may be bound or to which any of their respective properties is subject, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable federal and state securities and Blue Sky laws), judgment, injunction, order or decree to which any of the Companies or Enbridge North Dakota is a named party, excluding in each case any breaches, defaults or violations which, individually or in the aggregate, would not have a material adverse effect on the financial position, results of operations, business or prospects of the General Partner or the Partnership and the Operating Partnership (taken as a whole) (a "Material Adverse Effect"). (l) Except as disclosed in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), subsequent to the respective dates as of which such information is given in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), none of the Companies nor Enbridge North Dakota has incurred any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to the limited partners of the Partnership, the General Partner or the Partnership and the Operating Partnership (taken as a whole), and there has not been any change in the capital stock or partner's capital, or material increase in the short-term debt or long-term debt of, any of the Companies, or any material adverse change, or any development that the Partnership and the General Partner have reasonable cause to believe will involve a prospective material adverse change, in the financial position, business, prospects or results of operations of any of the Companies. (m) None of the Companies has distributed and, prior to the later to occur of (i) the Closing Date and (ii) completion of the distribution of the Offered Units, will distribute any offering material in connection with the offering and sale of the Offered Units other than the Final Prospectus or other materials, if any, permitted by the Act. (n) Except as disclosed in the Registration Statement and the Final Prospectus (or any amendment of supplement thereto), no more than ten percent of the net proceeds from the sale of the Offered Units are intended to be or will be paid to members of the National Association of Securities Dealers or associated or affiliated persons of such members, or members of the immediate family of such members. (o) Except for the General Partner, who has waived such rights, no holder of any security of the Partnership or any other person has any right to require registration of Units or any other interest or other security of the Partnership because of the filing of the Registration Statement or consummation of the transactions contemplated by this Agreement. (p) The General Partner has (excluding its interests in the Partnership and the Operating Partnership) a net worth of at least $35 million. (q) Based upon the advice of counsel, none of the Companies is, or as of the Closing Date will be, an "Investment Company" as that term is defined in the Investment Company Act of 1940, as amended (the "Investment Company Act"), or required to register as an "Investment Company" under the Investment Company Act. (r) Based upon the advice of counsel, none of the Companies is (i) a "public utility company," (ii) a "holding company," (iii) a "subsidiary company" of a "registered holding company" or of a "holding company" required to be registered under the Public Utility Holding Company Act of 1935, as amended (the "1935 Act"), or (iv) an "affiliate" of (A) a "registered holding company," (B) a "holding company" required to be registered under the 1935 Act, (C) a "subsidiary company" of a "registered holding company" or (D) a "subsidiary company" of a "holding company" required to be registered under the 1935 Act, as such terms are defined in the 1935 Act. The issuance and sale of the Offered Units as contemplated by the Final Prospectus is not subject to regulation under the 1935 Act. (s) There are no legal or governmental proceedings pending or, to the knowledge of any of the Companies, threatened, against any of the Companies or Enbridge North Dakota, or to which any of the Companies or Enbridge North Dakota, or to which any of their respective properties, is subject, that are required to be described in the Registration Statement or the Final Prospectus and are not described as required. (t) The States of Illinois, Indiana, Michigan, Minnesota, New York, North Dakota and Wisconsin are the only jurisdictions within the United States in which each of the Operating Partnership and General Partner, as applicable, owns or leases property, or conducts business as a foreign limited partnership or corporation, as applicable, so as to require the Operating Partnership or General Partner, as applicable, to qualify to conduct business as a foreign limited partnership or corporation, as applicable, and in which the failure to so qualify would be likely to have a Material Adverse Effect. The States of Minnesota and Wisconsin are the only jurisdictions within the United States in which the Partnership owns or leases property, or conducts business as a foreign limited partnership so as to require the Partnership to qualify to conduct business as a foreign limited partnership and in which the failure to so qualify would be likely to have a Material Adverse Effect.
Appears in 1 contract
Samples: Underwriting Agreement (Enbridge Energy Partners Lp)
REPRESENTATIONS AND WARRANTIES OF THE COMPANIES. Each of The Companies, jointly and severally, represent and warrant to, and agree with, the Companies represents and warrants to each Underwriter Purchasers that:
(a) The Basic Prospectus included A preliminary offering circular and an offering circular relating to the Offered Securities to be offered by the Purchasers have been prepared by the Companies. Such preliminary offering circular and offering circular, as part supplemented as of the Registration Statement as originally filed or as part date of any amendment or supplement thereto complied when so filed in all material respects this Agreement, together with the provisions documents incorporated therein by reference and any other document approved by the Companies for use in connection with the contemplated resale of the Act Offered Securities, are hereinafter collectively referred to as the "OFFERING DOCUMENT." On the date of this Agreement and did on the Closing Date, the Offering Document does not contain an include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Offering Document based upon written information furnished to the Company by any Purchaser through Credit Suisse First Boston Corporation ("CSFBC") specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 7(b) hereof. Except as disclosed in the Offering Document, the Issuer's Annual Report on Form 10-K and Quarterly Report on Form 10-Q most recently filed with the Commission and all subsequent reports (collectively, the "EXCHANGE ACT REPORTS") which have been filed by the Issuer with the Commission or sent to stockholders pursuant to the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") when filed did not include any untrue statement of a material fact required or omit to be stated therein or state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such documents, except that this representation and warranty does not apply to statements when they were filed with the Commission, conformed in or omissions from the Basic Prospectus made in reliance upon and in conformity with information relating to any Underwriters furnished all material respects to the Partnership in writing by or on behalf of any Underwriters expressly for use therein. To the best of each requirements of the Companies' knowledge, information Exchange Act and belief, having made reasonable inquiries, the rules and regulations of the Commission has not issued any order preventing or suspending the use of the Basic Prospectusthereunder.
(b) The Partnership and the offering of the Offered Units contemplated by this Agreement meet the requirements for using Form S-3 under the Act. The Registration Statement in the form in which it became or becomes effective and also in such form as it may be when any post-effective amendment thereto shall become effective and the Final Prospectus and any supplement or amendment thereto when filed with the Commission under Rule 424(b) and at the Closing Date and if applicable, at the Option Closing Date, complied or will comply in all material respects with the provisions of the Act, and will not at any such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the statements made or to be made in such documents that are covered by Rule 175(b) under the Act were made or will be made with a reasonable basis and in good faith, except that this representation and warranty does not apply to statements in or omissions from the Registration Statement or the Final Prospectus made in reliance upon and in conformity with information relating to any Underwriters furnished to the Partnership in writing by or on behalf of any Underwriters expressly for use therein.
(c) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act; any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) The capitalization of the Partnership as of September 30, 2001 was as set forth in the Final Prospectus under "Capitalization."
(e) The Offered Units and the limited partner interests represented thereby are authorized by the Partnership Agreement and, when issued, delivered and paid for in accordance with Section 4 hereof, will be validly issued, fully paid and non-assessable (except as such non-assessability may be affected by the matters described under the caption "Summary Description of the Partnership Agreement -- Limited Liability" in Amendment No. 3 to the Partnership's Registration Statement on Form S-1 (Registration No. 33-43425) which is incorporated by reference into the Partnership's Registration Statement on Form 8-A, dated November 14, 1991, as amended by Amendment No. 1 to Form 8-A on Form 8, dated December 9, 1991, and Amendment No. 2 on Form 8-A/A, dated May 2, 1997 (the "Form 8-A")) and free of any preemptive or similar rights (except for the required Capital Contributions (as defined in the Partnership Agreement) to the Partnership to be made by the General Partner pursuant to Section 4.4(c)(ii) of the Partnership Agreement), and the Underwriters will acquire such Units free and clear of any liens, encumbrances, security interests, charges or claims.
(f) Each of the Partnership and the Operating Partnership Issuer has been duly formed incorporated and is validly an existing as a limited partnership in good standing corporation under the Delaware Revised Uniform Limited Partnership Act (laws of the "Delaware Act")State of Tennessee, with partnership corporate power and authority to own or lease its properties and to conduct its business as described in the Final Prospectus Offering Document; and with respect the Issuer is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the Partnershipconduct of its business requires such qualification, also except where the failure to act be so qualified or be in good standing would not have a material adverse effect on the condition (financial or other), business, properties, results of operations or general affairs of the Issuer and its subsidiaries taken as the sole member of Enbridge Pipelines a whole (North Dakota) LLC, a North Dakota limited liability company ("Enbridge North DakotaMATERIAL ADVERSE EFFECT").
(c) Each Guarantor is listed on Schedule B hereto, together with its jurisdiction of organization and the beneficial ownership of the Issuer therein. Enbridge North Dakota Each Guarantor has been duly organized and is validly an existing as a corporation, limited liability company or partnership, as the case may be, in good standing under the laws of the State jurisdiction of North Dakotaits organization, with full limited liability company all power and authority to own or lease its properties and to conduct its business as described in the Final Prospectus. The Partnership Offering Document; and each Guarantor is the sole member of Enbridge North Dakota.
(g) The General Partner has been duly incorporated and is validly existing qualified to do business as a corporation in good standing under the laws of the State of Delawareforeign corporation, with the corporate power and authority to own limited liability company or lease its properties, to conduct its businesses and to act as a general partner of the Partnership and the Operating Partnership, in each case as described in the Final Prospectus.
(h) The accountants, PricewaterhouseCoopers LLP, who have certified or shall certify the financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), are independent public accountants as required by the Act.
(i) The financial statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the Final Prospectus (and any amendment or supplement thereto), present fairly the consolidated financial position, results of operations and changes in financial position of the Partnership and the Operating Partnership on the basis stated in the Registration Statement at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; and the other financial and statistical information and data included or incorporated by reference in the Registration Statement and the Final Prospectus (and any amendment or supplement thereto) are accurately presented and prepared on a basis consistent with such financial statements and the books and records of the Companies.
(j) The execution and delivery of, and the performance by each of the Companies of its obligations under this Agreement have been duly and validly authorized by each of such Companiespartnership, as the case may be, in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all of the issued and this outstanding capital stock of each Guarantor that is a corporation has been duly authorized and validly issued and is fully paid and nonassessable; the capital stock of each Guarantor that is a corporation is owned by the Issuer, directly or through subsidiaries, free and clear of any mortgage, pledge, lien, security interest, claim, encumbrance or defect of any kind; and the Guarantors constitute all of the direct and indirect subsidiaries of the Issuer.
(d) This Agreement has been duly authorized, executed and delivered by each of the Companies and constitutes a valid and binding obligation of each of the Companies, enforceable against each of them in accordance with its terms, except to the extent that (A) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights and remedies generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) and (B) rights to indemnity and contribution may be limited by applicable laws.
(e) The Indenture has been duly authorized by each of the Companies and, when duly executed and delivered by each of the Companies and the Trustee, will constitute a valid and binding obligation of each of the Companies, enforceable against each of them in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights and remedies generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity); and the Indenture conforms in all material respects to the description thereof contained in the Offering Document.
(f) The Registration Rights Agreement has been duly authorized, executed and delivered by each of the Companies and constitutes a valid and binding obligation of each of the Companies, enforceable against each of them in accordance with its terms, except to the extent that (A) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights and remedies generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) and (B) rights to indemnity and contribution may be limited by applicable laws; and the Registration Rights Agreement conforms in all material respects to the description thereof contained in the Offering Document.
(g) The Offered Securities have been duly authorized by the Issuer, and when executed, authenticated, issued and delivered in the manner provided for in the Indenture and sold and paid for as provided in this Agreement, the Offered Securities will constitute valid and binding obligations of the Issuer entitled to the benefits of the Indenture and enforceable against the Issuer in accordance with their terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights and remedies generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity); and the Offered Securities conform in all material respects to the description thereof contained in the Offering Document.
(h) The Guarantees have been duly authorized by each of the Guarantors, and when executed, authenticated, issued and delivered in the manner provided for in the Indenture and sold and paid for as provided in this Agreement, the Guarantees will constitute valid and binding obligations of each of the Guarantors entitled to the benefits of the Indenture and enforceable against each of the Guarantors in accordance with their terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights and remedies generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity); and the Guarantees conform in all material respects to the description thereof contained in the Offering Document.
(i) The Exchange Securities have been duly authorized by the Issuer, and when executed, authenticated, issued and delivered in the manner provided for in the Indenture and the Registration Rights Agreement, the Exchange Securities will constitute valid and binding obligations of the Issuer entitled to the benefits of the Indenture and enforceable against the Issuer in accordance with their terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights and remedies generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(j) The Exchange Security Guarantees have been duly authorized by each of the Guarantors, and when executed, authenticated, issued and delivered in the manner provided for in the Indenture and the Registration Rights Agreement, the Exchange Security Guarantees will constitute valid and binding obligations of each of the Guarantors entitled to the benefits of the Indenture and enforceable against each of the Guarantors in accordance with their terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights and remedies generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(k) Neither Assuming the offer, sale or delivery accuracy of the Offered Unitsrepresentations of the Purchasers in Section 4, except as disclosed in the Offering Document, the execution, delivery or and performance of the Indenture, the Offered Securities, the Guarantees, the Exchange Securities, the Exchange Security Guarantees, the Registration Rights Agreement and this Agreement and the consummation of the transactions therein and herein contemplated will not require the consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court (except such as have been obtained, such as may be required under federal securities law in connection with the Registration Rights Agreement and such as may be required under state securities laws).
(l) The execution, delivery and performance of the Indenture, the Registration Rights Agreement, compliance the Offered Securities, the Guarantees, the Exchange Securities, the Exchange Security Guarantees and this Agreement and the consummation of the transactions therein and herein contemplated have been duly authorized by all necessary action on the part of each of the Companies and do not and will not violate or result in a breach or violation of any of the terms and provisions of, and do not and will not constitute a default (or an event which with the giving of notice or the lapse of time or both would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any material assets or properties of any of the Companies with under (A) the provisions hereof nor consummation by charter, by-laws or other organizational documents of any of the Companies Companies, (B) any statute, any rule, regulation, order or decree of the transactions contemplated hereby constitutes a breach ofany governmental or regulatory agency or body or any court, domestic or a default underforeign, the partnership agreement, certificate or articles of incorporation or bylaws, or other organizational documents, of having jurisdiction over any of the Companies or any contractof their properties, assets or operations, or (C) any indenture, mortgage, deed of trust, loan or credit agreement, note, lease lease, permit, license or other agreement or instrument to which any of the Companies or Enbridge North Dakota is a party or by which any of them may be is bound or to which any of their respective properties is subjectthe properties, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable federal and state securities and Blue Sky laws), judgment, injunction, order assets or decree to which any of the Companies or Enbridge North Dakota is a named party, excluding in each case any breaches, defaults or violations which, individually or in the aggregate, would not have a material adverse effect on the financial position, results of operations, business or prospects of the General Partner or the Partnership and the Operating Partnership (taken as a whole) (a "Material Adverse Effect").
(l) Except as disclosed in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), subsequent to the respective dates as of which such information is given in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), none of the Companies nor Enbridge North Dakota has incurred any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to the limited partners of the Partnership, the General Partner or the Partnership and the Operating Partnership (taken as a whole), and there has not been any change in the capital stock or partner's capital, or material increase in the short-term debt or long-term debt of, any of the Companies, or any material adverse change, or any development that the Partnership and the General Partner have reasonable cause to believe will involve a prospective material adverse change, in the financial position, business, prospects or results of operations of any of the Companies.
(m) None of the Companies has distributed andis subject, prior to the later to occur of (i) the Closing Date and (ii) completion of the distribution of the Offered Unitsexcept, will distribute any offering material in connection with the offering and sale of the Offered Units other than the Final Prospectus or other materials, if any, permitted by the Act.
(n) Except as disclosed in the Registration Statement and the Final Prospectus (or any amendment case of supplement thereto), no more than ten percent of the net proceeds from the sale of the Offered Units are intended to be or will be paid to members of the National Association of Securities Dealers or associated or affiliated persons of such members, or members of the immediate family of such members.
(o) Except for the General Partner, who has waived such rights, no holder of any security of the Partnership or any other person has any right to require registration of Units or any other interest or other security of the Partnership because of the filing of the Registration Statement or consummation of the transactions contemplated by this Agreement.
(p) The General Partner has (excluding its interests in the Partnership and the Operating Partnership) a net worth of at least $35 million.
(q) Based upon the advice of counsel, none of the Companies is, or as of the Closing Date will be, an "Investment Company" as that term is defined in the Investment Company Act of 1940, as amended (the "Investment Company Act"), or required to register as an "Investment Company" under the Investment Company Act.
(r) Based upon the advice of counsel, none of the Companies is (i) a "public utility company," (ii) a "holding company," (iii) a "subsidiary company" of a "registered holding company" or of a "holding company" required to be registered under the Public Utility Holding Company Act of 1935, as amended (the "1935 Act"), or (iv) an "affiliate" of (A) a "registered holding company," clauses (B) a "holding company" required to be registered under the 1935 Act, and (C) a "subsidiary company" of a "registered holding company" ), for such breaches, violations or (D) a "subsidiary company" of a "holding company" required to be registered under the 1935 Act, as such terms are defined in the 1935 Act. The issuance and sale of the Offered Units as contemplated by the Final Prospectus is defaults which would not subject to regulation under the 1935 Act.
(s) There are no legal or governmental proceedings pending or, to the knowledge of any of the Companies, threatened, against any of the Companies or Enbridge North Dakota, or to which any of the Companies or Enbridge North Dakota, or to which any of their respective properties, is subject, that are required to be described in the Registration Statement or the Final Prospectus and are not described as required.
(t) The States of Illinois, Indiana, Michigan, Minnesota, New York, North Dakota and Wisconsin are the only jurisdictions within the United States in which each of the Operating Partnership and General Partner, as applicable, owns or leases property, or conducts business as a foreign limited partnership or corporation, as applicable, so as to require the Operating Partnership or General Partner, as applicable, to qualify to conduct business as a foreign limited partnership or corporation, as applicable, and in which the failure to so qualify would be likely to have a Material Adverse Effect. The States of Minnesota and Wisconsin are the only jurisdictions within the United States in which the Partnership owns or leases property, or conducts business as a foreign limited partnership so as to require the Partnership to qualify to conduct business as a foreign limited partnership and in which the failure to so qualify would be likely to have a Material Adverse Effect.
(m) The Companies have good title to all real properties owned by them, in each case free and clear of any mortgage, pledge, lien, security interest, claim or other encumbrance or defect; the Companies hold all leased real property under valid, subsisting and enforceable leases or subleases with no exceptions that would materially interfere with the use made or to be made thereof by them; none of the Companies is in default under any such lease or sublease; and no material claim of any sort has been asserted by anyone adverse to the rights of the Companies under any such lease or sublease or affecting or questioning the right of such entity to the continued possession of
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE COMPANIES. Each of the Companies represents and warrants to each the Underwriter that:
(a) The Basic Prospectus included as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto complied when so filed in all material respects with the provisions of the Act and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that this representation and warranty does not apply to statements in or omissions from the Basic Prospectus made in reliance upon and in conformity with information relating to any Underwriters the Underwriter furnished to the Partnership in writing by or on behalf of any Underwriters the Underwriter expressly for use therein. To the best of each of the Companies' knowledge, information and belief, having made reasonable inquiries, the Commission has not issued any order preventing or suspending the use of the Basic Prospectus.
(b) The Partnership and the offering of the Offered Units contemplated by this Agreement meet the requirements for using Form S-3 under the Act. The Registration Statement in the form in which it became or becomes effective and also in such form as it may be when any post-effective amendment thereto shall become effective and the Final Prospectus and any supplement or amendment thereto when filed with the Commission under Rule 424(b) and at the Closing Date and if applicable, at the Option Closing Date, complied or will comply in all material respects with the provisions of the Act, and will not at any such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the statements made or to be made in such documents that are covered by Rule 175(b) under the Act were made or will be made with a reasonable basis and in good faith, except that this representation and warranty does not apply to statements in or omissions from the Registration Statement or the Final Prospectus made in reliance upon and in conformity with information relating to any Underwriters the Underwriter furnished to the Partnership in writing by or on behalf of any Underwriters the Underwriter expressly for use therein.
(c) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act; any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) The capitalization of the Partnership as of September 30March 31, 2001 was as set forth in the Final Prospectus under "Capitalization."
(e) The Offered Units and the limited partner interests represented thereby are authorized by the Partnership Agreement and, when issued, delivered and paid for in accordance with Section 4 hereof, will be validly issued, fully paid and non-assessable (except as such non-assessability may be affected by the matters described under the caption "Summary Description of the Partnership Agreement -- Limited Liability" in Amendment No. 3 to the Partnership's Registration Statement on Form S-1 (Registration No. 33-43425) which is incorporated by reference into the Partnership's Registration Statement on Form 8-A, dated November 14, 1991, as amended by Amendment No. 1 to Form 8-A on Form 8, dated December 9, 1991, and Amendment No. 2 on Form 8-A/A, dated May 2, 1997 (the "Form 8-A")) and free of any preemptive or similar rights (except for the required Capital Contributions (as defined in the Partnership Agreement) to the Partnership to be made by the General Partner pursuant to Section 4.4(c)(ii) of the Partnership Agreement), and the Underwriters Underwriter will acquire such Units free and clear of any liens, encumbrances, security interests, charges or claims.
(f) Each of the Partnership and the Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the Delaware Revised Uniform Limited Partnership Act (the "Delaware Act"), with partnership power and authority to own or lease its properties and to conduct its business as described in the Final Prospectus and with respect to the Partnership, also to act as the sole member of Enbridge Pipelines (North Dakota) LLC, a North Dakota limited liability company ("Enbridge North Dakota"). Enbridge North Dakota has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of North Dakota, with full limited liability company power and authority to own or lease its properties and to conduct its business as described in the Final Prospectus. The Partnership is the sole member of Enbridge North Dakota.
(g) The General Partner has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with the corporate power and authority to own or lease its properties, to conduct its businesses and to act as a general partner of the Partnership and the Operating Partnership, in each case as described in the Final Prospectus.
(h) The accountants, PricewaterhouseCoopers LLP, who have certified or shall certify the financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), are independent public accountants as required by the Act.
(i) The financial statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the Final Prospectus (and any amendment or supplement thereto), present fairly the consolidated financial position, results of operations and changes in financial position of the Partnership and the Operating Partnership on the basis stated in the Registration Statement at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; and the other financial and statistical information and data included or incorporated by reference in the Registration Statement and the Final Prospectus (and any amendment or supplement thereto) are accurately presented and prepared on a basis consistent with such financial statements and the books and records of the Companies.
(j) The execution and delivery of, and the performance by each of the Companies of its obligations under this Agreement have been duly and validly authorized by each of such Companies, as the case may be, and this Agreement has been duly executed and delivered by each of the Companies.
(k) Neither the offer, sale or delivery of the Offered Units, the execution, delivery or performance of this Agreement, compliance by any of the Companies with the provisions hereof nor consummation by any of the Companies of the transactions contemplated hereby constitutes a breach of, or a default under, the partnership agreement, certificate or articles of incorporation or bylaws, or other organizational documents, of any of the Companies or any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Companies or Enbridge North Dakota is a party or by which any of them may be bound or to which any of their respective properties is subject, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable federal and state securities and Blue Sky laws), judgment, injunction, order or decree to which any of the Companies or Enbridge North Dakota is a named party, excluding in each case any breaches, defaults or violations which, individually or in the aggregate, would not have a material adverse effect on the financial position, results of operations, business or prospects of the General Partner or the Partnership and the Operating Partnership (taken as a whole) (a "Material Adverse Effect").
(l) Except as disclosed in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), subsequent to the respective dates as of which such information is given in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), none of the Companies nor Enbridge North Dakota has incurred any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to the limited partners of the Partnership, the General Partner or the Partnership and the Operating Partnership (taken as a whole), and there has not been any change in the capital stock or partner's capital, or material increase in the short-term debt or long-term debt of, any of the Companies, or any material adverse change, or any development that the Partnership and the General Partner have reasonable cause to believe will involve a prospective material adverse change, in the financial position, business, prospects or results of operations of any of the Companies.
(m) None of the Companies has distributed and, prior to the later to occur of (i) the Closing Date and (ii) completion of the distribution of the Offered Units, will distribute any offering material in connection with the offering and sale of the Offered Units other than the Final Prospectus or other materials, if any, permitted by the Act.
(n) Except as disclosed in the Registration Statement and the Final Prospectus (or any amendment of supplement thereto), no more than ten percent of the net proceeds from the sale of the Offered Units are intended to be or will be paid to members of the National Association of Securities Dealers or associated or affiliated persons of such members, or members of the immediate family of such members.
(o) Except for the General Partner, who has waived such rights, no holder of any security of the Partnership or any other person has any right to require registration of Units or any other interest or other security of the Partnership because of the filing of the Registration Statement or consummation of the transactions contemplated by this Agreement.
(p) The General Partner has (excluding its interests in the Partnership and the Operating Partnership) a net worth of at least $35 million.
(q) Based upon the advice of counsel, none of the Companies is, or as of the Closing Date will be, an "Investment Company" as that term is defined in the Investment Company Act of 1940, as amended (the "Investment Company Act"), or required to register as an "Investment Company" under the Investment Company Act.
(r) Based upon the advice of counsel, none of the Companies is (i) a "public utility company," (ii) a "holding company," (iii) a "subsidiary company" of a "registered holding company" or of a "holding company" required to be registered under the Public Utility Holding Company Act of 1935, as amended (the "1935 Act"), or (iv) an "affiliate" of (A) a "registered holding company," (B) a "holding company" required to be registered under the 1935 Act, (C) a "subsidiary company" of a "registered holding company" or (D) a "subsidiary company" of a "holding company" required to be registered under the 1935 Act, as such terms are defined in the 1935 Act. The issuance and sale of the Offered Units as contemplated by the Final Prospectus is not subject to regulation under the 1935 Act.
(s) There are no legal or governmental proceedings pending or, to the knowledge of any of the Companies, threatened, against any of the Companies or Enbridge North Dakota, or to which any of the Companies or Enbridge North Dakota, or to which any of their respective properties, is subject, that are required to be described in the Registration Statement or the Final Prospectus and are not described as required.
(t) The States of Illinois, Indiana, Michigan, Minnesota, New York, North Dakota and Wisconsin are the only jurisdictions within the United States in which each of the Operating Partnership and General Partner, as applicable, owns or leases property, or conducts business as a foreign limited partnership or corporation, as applicable, so as to require the Operating Partnership or General Partner, as applicable, to qualify to conduct business as a foreign limited partnership or corporation, as applicable, and in which the failure to so qualify would be likely to have a Material Adverse Effect. The States of Minnesota and Wisconsin are the only jurisdictions within the United States in which the Partnership owns or leases property, or conducts business as a foreign limited partnership so as to require the Partnership to qualify to conduct business as a foreign limited partnership and in which the failure to so qualify would be likely to have a Material Adverse Effect.general
Appears in 1 contract
Samples: Underwriting Agreement (Lakehead Pipe Line Partners L P)
REPRESENTATIONS AND WARRANTIES OF THE COMPANIES. Each of the Companies represents and warrants to each Underwriter that:
(a) The Basic Prospectus included as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto thereto, and the Preliminary Prospectus filed pursuant to Rule 424(b), complied when so filed in all material respects with the provisions of the Act and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that this representation and warranty does not apply to statements in or omissions from the Basic Prospectus or the Preliminary Prospectus made in reliance upon and in conformity with information relating to any Underwriters Underwriter furnished to the Operating Partnership in writing by or on behalf of any Underwriters Underwriter expressly for use therein. To the best of each of the Companies' knowledge, information and belief, having made reasonable inquiries, the Commission has not issued any order preventing or suspending the use of the Basic Prospectus or the Preliminary Prospectus.
(b) The Operating Partnership and the offering of the Offered Units Securities contemplated by this Agreement meet the requirements for using Form S-3 under the Act. The Registration Statement in the form in which it became or becomes effective and also in such form as it may be when any post-effective amendment thereto shall become effective and the Final Prospectus and any supplement or amendment thereto when filed with the Commission under Rule 424(b) and at the Closing Date and if applicable, at the Option Closing DateTime, complied or will comply in all material respects with the provisions of the Act and, with respect to the Registration Statement, the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (the "1939 Act"), and will not at any such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the statements made or to be made in such documents that are covered by Rule 175(b) under the Act were made or will be made with a reasonable basis and in good faith, except that this representation and warranty does not apply to statements in or omissions from the Registration Statement or the Final Prospectus made in reliance upon and in conformity with information relating to any Underwriters Underwriter furnished to the Operating Partnership in writing by or on behalf of any Underwriters Underwriter expressly for use therein.
(c) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act; any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), ) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) The capitalization of the Partnership as of September 30, 2001 was as set forth in the Final Prospectus under "Capitalization."
(e) The Offered Units and the limited partner interests represented thereby are authorized by the Partnership Agreement and, when issued, delivered and paid for in accordance with Section 4 hereof, will be validly issued, fully paid and non-assessable (except as such non-assessability may be affected by the matters described under the caption "Summary Description of the Partnership Agreement -- Limited Liability" in Amendment No. 3 to the Partnership's Registration Statement on Form S-1 (Registration No. 33-43425) which is incorporated by reference into the Partnership's Registration Statement on Form 8-A, dated November 14, 1991, as amended by Amendment No. 1 to Form 8-A on Form 8, dated December 9, 1991, and Amendment No. 2 on Form 8-A/A, dated May 2, 1997 (the "Form 8-A")) and free of any preemptive or similar rights (except for the required Capital Contributions (as defined in the Partnership Agreement) to the Partnership to be made by the General Partner pursuant to Section 4.4(c)(ii) of the Partnership Agreement), and the Underwriters will acquire such Units free and clear of any liens, encumbrances, security interests, charges or claims.
(f) Each of the Partnership and the Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the Delaware Revised Uniform Limited Partnership Act (the "Delaware Act"), with partnership power and authority to own or lease its properties and to conduct its business as described in the Final Prospectus and with respect to the Partnership, also to act as the sole member of Enbridge Pipelines (North Dakota) LLC, a North Dakota limited liability company ("Enbridge North Dakota"). Enbridge North Dakota has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of North Dakota, with full limited liability company power and authority to own or lease its properties and to conduct its business as described in the Final Prospectus. The Partnership is the sole member of Enbridge North Dakota.
(g) The General Partner has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with the corporate power and authority to own or lease its properties, to conduct its businesses and to act as a general partner of the Partnership and the Operating Partnership, in each case as described in the Final Prospectus.
(h) The accountants, PricewaterhouseCoopers LLP, who have certified or shall certify the financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), are independent public accountants as required by the Act.
(i) The financial statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the Final Prospectus (and any amendment or supplement thereto), present fairly the consolidated financial position, results of operations and changes in financial position of the Partnership and the Operating Partnership on the basis stated in the Registration Statement at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; and the other financial and statistical information and data included or incorporated by reference in the Registration Statement and the Final Prospectus (and any amendment or supplement thereto) are accurately presented and prepared on a basis consistent with such financial statements and the books and records of the Companies.
(j) The execution and delivery of, and the performance by each of the Companies of its obligations under this Agreement have been duly and validly authorized by each of such Companies, as the case may be, and this Agreement has been duly executed and delivered by each of the Companies.
(k) Neither the offer, sale or delivery of the Offered Units, the execution, delivery or performance of this Agreement, compliance by any of the Companies with the provisions hereof nor consummation by any of the Companies of the transactions contemplated hereby constitutes a breach of, or a default under, the partnership agreement, certificate or articles of incorporation or bylaws, or other organizational documents, of any of the Companies or any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Companies or Enbridge North Dakota is a party or by which any of them may be bound or to which any of their respective properties is subject, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable federal and state securities and Blue Sky laws), judgment, injunction, order or decree to which any of the Companies or Enbridge North Dakota is a named party, excluding in each case any breaches, defaults or violations which, individually or in the aggregate, would not have a material adverse effect on the financial position, results of operations, business or prospects of the General Partner or the Partnership and the Operating Partnership (taken as a whole) (a "Material Adverse Effect").
(l) Except as disclosed in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), subsequent to the respective dates as of which such information is given in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), none of the Companies nor Enbridge North Dakota has incurred any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to the limited partners of the Partnership, the General Partner or the Partnership and the Operating Partnership (taken as a whole), and there has not been any change in the capital stock or partner's capital, or material increase in the short-term debt or long-term debt of, any of the Companies, or any material adverse change, or any development that the Partnership and the General Partner have reasonable cause to believe will involve a prospective material adverse change, in the financial position, business, prospects or results of operations of any of the Companies.
(m) None of the Companies has distributed and, prior to the later to occur of (i) the Closing Date and (ii) completion of the distribution of the Offered Units, will distribute any offering material in connection with the offering and sale of the Offered Units other than the Final Prospectus or other materials, if any, permitted by the Act.
(n) Except as disclosed in the Registration Statement and the Final Prospectus (or any amendment of supplement thereto), no more than ten percent of the net proceeds from the sale of the Offered Units are intended to be or will be paid to members of the National Association of Securities Dealers or associated or affiliated persons of such members, or members of the immediate family of such members.
(o) Except for the General Partner, who has waived such rights, no holder of any security of the Partnership or any other person has any right to require registration of Units or any other interest or other security of the Partnership because of the filing of the Registration Statement or consummation of the transactions contemplated by this Agreement.
(p) The General Partner has (excluding its interests in the Partnership and the Operating Partnership) a net worth of at least $35 million.
(q) Based upon the advice of counsel, none of the Companies is, or as of the Closing Date will be, an "Investment Company" as that term is defined in the Investment Company Act of 1940, as amended (the "Investment Company Act"), or required to register as an "Investment Company" under the Investment Company Act.
(r) Based upon the advice of counsel, none of the Companies is (i) a "public utility company," (ii) a "holding company," (iii) a "subsidiary company" of a "registered holding company" or of a "holding company" required to be registered under the Public Utility Holding Company Act of 1935, as amended (the "1935 Act"), or (iv) an "affiliate" of (A) a "registered holding company," (B) a "holding company" required to be registered under the 1935 Act, (C) a "subsidiary company" of a "registered holding company" or (D) a "subsidiary company" of a "holding company" required to be registered under the 1935 Act, as such terms are defined in the 1935 Act. The issuance and sale of the Offered Units as contemplated by the Final Prospectus is not subject to regulation under the 1935 Act.
(s) There are no legal or governmental proceedings pending or, to the knowledge of any of the Companies, threatened, against any of the Companies or Enbridge North Dakota, or to which any of the Companies or Enbridge North Dakota, or to which any of their respective properties, is subject, that are required to be described in the Registration Statement or the Final Prospectus and are not described as required.
(t) The States of Illinois, Indiana, Michigan, Minnesota, New York, North Dakota and Wisconsin are the only jurisdictions within the United States in which each of the Operating Partnership and General Partner, as applicable, owns or leases property, or conducts business as a foreign limited partnership or corporation, as applicable, so as to require the Operating Partnership or General Partner, as applicable, to qualify to conduct business as a foreign limited partnership or corporation, as applicable, and in which the failure to so qualify would be likely to have a Material Adverse Effect. The States of Minnesota and Wisconsin are the only jurisdictions within the United States in which the Partnership owns or leases property, or conducts business as a foreign limited partnership so as to require the Partnership to qualify to conduct business as a foreign limited partnership and in which the failure to so qualify would be likely to have a Material Adverse Effect.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE COMPANIES. Each of the Companies ----------------------------------------------- represents and warrants to each Underwriter that:
(a) The Basic Each Prepricing Prospectus included as part of the Registration Statement registration statement as originally filed or as part of any amendment or supplement thereto thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the provisions of the Act and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that this representation and warranty does not apply to statements in or omissions from the Basic any Prepricing Prospectus made in reliance upon and in conformity with information relating to any Underwriters Underwriter furnished to the Partnership in writing by or on behalf of any Underwriters Underwriter expressly for use therein. To the best of each of the Companies' knowledge, information and belief, having made reasonable inquiries, the Commission has not issued any order preventing or suspending the use of the Basic any Prepricing Prospectus.
(b) The Partnership and the offering of the Offered Units contemplated by this Agreement meet the requirements for using Form S-3 under the Act. The Registration Statement registration statement in the form in which it became or becomes effective and also in such form as it may be when any post-effective amendment thereto shall become effective and the Final Prospectus and any supplement or amendment thereto when filed with the Commission under Rule 424(b) and at under the Closing Date and if applicable, at the Option Closing DateAct, complied or will comply in all material respects with the provisions of the Act, Act and will not at any such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the statements made or to be made in such documents that are covered by Rule 175(b) under the Act were made or will be made with a reasonable basis and in good faith, except that this representation and warranty does not apply to statements in or omissions from the Registration Statement or the Final Prospectus made in reliance upon and in conformity with information relating to any Underwriters Underwriter furnished to the Partnership in writing by or on behalf of any Underwriters Underwriter expressly for use therein.
(c) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act; , any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) The capitalization of the Partnership as of September 30, 2001 was is as set forth in the Final Registration Statement and the Prospectus under "Capitalization."
(e) The Offered Units and the limited partner interests represented thereby are authorized by the Partnership Agreement and, when issued, delivered and paid for in accordance with Section 4 hereof, will be validly issued, fully paid and non-assessable (except as such non-assessability assessibility may be affected by the matters described under the caption "Summary Description of the Partnership Agreement -- Limited Liability" in Amendment No. 3 to the Partnership's Registration Statement on Form S-1 (Registration No. 33-43425) which is incorporated by reference into the Partnership's Registration Statement on Form 8-A, dated November 14, 1991, as amended by Amendment No. 1 to Form 8-A on Form 8, dated December 9, 1991, and Amendment No. 2 on Form 8-A/A, dated May 2, 1997 (the "Form 8-A")) and free of any preemptive or similar rights (except for the required Capital Contributions (as defined in the Partnership Agreement) to the Partnership to be made by the General Partner pursuant to Section 4.4(c)(ii) of the Partnership Agreement), and the Underwriters will acquire such Units free and clear of any liens, encumbrances, security interests, charges or claims.
(f) Each of the Partnership and the Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the Delaware Revised Uniform Limited Partnership Act (the "Delaware Act"), with partnership power and authority to own or lease its properties and to conduct its business as described in the Final Prospectus and with respect to the Partnership, also to act as the sole member of Enbridge Pipelines (North Dakota) LLC, a North Dakota limited liability company ("Enbridge North Dakota"). Enbridge North Dakota has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of North Dakota, with full limited liability company power and authority to own or lease its properties and to conduct its business as described in the Final Prospectus. The Partnership is the sole member of Enbridge North Dakota.
(g) The General Partner has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with the corporate power and authority to own or lease its properties, to conduct its businesses and to act as a general partner of the Partnership and the Operating Partnership, in each case as described in the Final Prospectus.
(h) The accountants, PricewaterhouseCoopers LLP, who have certified or shall certify the financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), are independent public accountants as required by the Act.
(i) The financial statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the Final Prospectus (and any amendment or supplement thereto), present fairly the consolidated financial position, results of operations and changes in financial position of the Partnership and the Operating Partnership on the basis stated in the Registration Statement at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; and the other financial and statistical information and data included or incorporated by reference in the Registration Statement and the Final Prospectus (and any amendment or supplement thereto) are accurately presented and prepared on a basis consistent with such financial statements and the books and records of the Companies.
(j) The execution and delivery of, and the performance by each of the Companies of its obligations under this Agreement have been duly and validly authorized by each of such Companies, as the case may be, and this Agreement has been duly executed and delivered by each of the Companies.
(k) Neither the offer, sale or delivery of the Offered Units, the execution, delivery or performance of this Agreement, compliance by any of the Companies with the provisions hereof nor consummation by any of the Companies of the transactions contemplated hereby constitutes a breach of, or a default under, the partnership agreement, certificate or articles of incorporation or bylaws, or other organizational documents, of any of the Companies or any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Companies or Enbridge North Dakota is a party or by which any of them may be bound or to which any of their respective properties is subject, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable federal and state securities and Blue Sky laws), judgment, injunction, order or decree to which any of the Companies or Enbridge North Dakota is a named party, excluding in each case any breaches, defaults or violations which, individually or in the aggregate, would not have a material adverse effect on the financial position, results of operations, business or prospects of the General Partner or the Partnership and the Operating Partnership (taken as a whole) (a "Material Adverse Effect").
(l) Except as disclosed in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), subsequent to the respective dates as of which such information is given in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), none of the Companies nor Enbridge North Dakota has incurred any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to the limited partners of the Partnership, the General Partner or the Partnership and the Operating Partnership (taken as a whole), and there has not been any change in the capital stock or partner's capital, or material increase in the short-term debt or long-term debt of, any of the Companies, or any material adverse change, or any development that the Partnership and the General Partner have reasonable cause to believe will involve a prospective material adverse change, in the financial position, business, prospects or results of operations of any of the Companies.
(m) None of the Companies has distributed and, prior to the later to occur of (i) the Closing Date and (ii) completion of the distribution of the Offered Units, will distribute any offering material in connection with the offering and sale of the Offered Units other than the Final Prospectus or other materials, if any, permitted by the Act.
(n) Except as disclosed in the Registration Statement and the Final Prospectus (or any amendment of supplement thereto), no more than ten percent of the net proceeds from the sale of the Offered Units are intended to be or will be paid to members of the National Association of Securities Dealers or associated or affiliated persons of such members, or members of the immediate family of such members.
(o) Except for the General Partner, who has waived such rights, no holder of any security of the Partnership or any other person has any right to require registration of Units or any other interest or other security of the Partnership because of the filing of the Registration Statement or consummation of the transactions contemplated by this Agreement.
(p) The General Partner has (excluding its interests in the Partnership and the Operating Partnership) a net worth of at least $35 million.
(q) Based upon the advice of counsel, none of the Companies is, or as of the Closing Date will be, an "Investment Company" as that term is defined in the Investment Company Act of 1940, as amended (the "Investment Company Act"), or required to register as an "Investment Company" under the Investment Company Act.
(r) Based upon the advice of counsel, none of the Companies is (i) a "public utility company," (ii) a "holding company," (iii) a "subsidiary company" of a "registered holding company" or of a "holding company" required to be registered under the Public Utility Holding Company Act of 1935, as amended (the "1935 Act"), or (iv) an "affiliate" of (A) a "registered holding company," (B) a "holding company" required to be registered under the 1935 Act, (C) a "subsidiary company" of a "registered holding company" or (D) a "subsidiary company" of a "holding company" required to be registered under the 1935 Act, as such terms are defined in the 1935 Act. The issuance and sale of the Offered Units as contemplated by the Final Prospectus is not subject to regulation under the 1935 Act.
(s) There are no legal or governmental proceedings pending or, to the knowledge of any of the Companies, threatened, against any of the Companies or Enbridge North Dakota, or to which any of the Companies or Enbridge North Dakota, or to which any of their respective properties, is subject, that are required to be described in the Registration Statement or the Final Prospectus and are not described as required.
(t) The States of Illinois, Indiana, Michigan, Minnesota, New York, North Dakota and Wisconsin are the only jurisdictions within the United States in which each of the Operating Partnership and General Partner, as applicable, owns or leases property, or conducts business as a foreign limited partnership or corporation, as applicable, so as to require the Operating Partnership or General Partner, as applicable, to qualify to conduct business as a foreign limited partnership or corporation, as applicable, and in which the failure to so qualify would be likely to have a Material Adverse Effect. The States of Minnesota and Wisconsin are the only jurisdictions within the United States in which the Partnership owns or leases property, or conducts business as a foreign limited partnership so as to require the Partnership to qualify to conduct business as a foreign limited partnership and in which the failure to so qualify would be likely to have a Material Adverse Effect.to
Appears in 1 contract
Samples: Underwriting Agreement (Lakehead Pipe Line Partners L P)
REPRESENTATIONS AND WARRANTIES OF THE COMPANIES. Each of the Companies represents and warrants to each Underwriter that:
(a) The Basic Prospectus included as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto complied when so filed in all material respects with the provisions of the Act and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that this representation and warranty does not apply to statements in or omissions from the Basic Prospectus made in reliance upon and in conformity with information relating to any Underwriters furnished to the Partnership in writing by or on behalf of any Underwriters expressly for use therein. To the best of each of the Companies' knowledge, information and belief, having made reasonable inquiries, the Commission has not issued any order preventing or suspending the use of the Basic Prospectus.
(b) The Partnership and the offering of the Offered Units contemplated by this Agreement meet the requirements for using Form S-3 under the Act. The Registration Statement in the form in which it became or becomes effective and also in such form as it may be when any post-effective amendment thereto shall become effective and the Final Prospectus and any supplement or amendment thereto when filed with the Commission under Rule 424(b) and at the Closing Date and if applicable, at the Option Closing Date, complied or will comply in all material respects with the provisions of the Act, and will not at any such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the statements made or to be made in such documents that are covered by Rule 175(b) under the Act were made or will be made with a reasonable basis and in good faith, except that this representation and warranty does not apply to statements in or omissions from the Registration Statement or the Final Prospectus made in reliance upon and in conformity with information relating to any Underwriters furnished to the Partnership in writing by or on behalf of any Underwriters expressly for use therein.
(c) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act; any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(d) The capitalization of the Partnership as of September 30December 31, 2001 was as set forth in the Final Prospectus under "Capitalization."
(e) The Offered Units and the limited partner interests represented thereby are authorized by the Partnership Agreement and, when issued, delivered and paid for in accordance with Section 4 hereof, will be validly issued, fully paid and non-assessable (except as such non-assessability may be affected by the matters described under the caption "Summary Description of the Partnership Agreement -- Limited Liability" in Amendment No. 3 to the Partnership's Registration Statement on Form S-1 (Registration No. 33-43425) which is incorporated by reference into the Partnership's Registration Statement on Form 8-A, dated November 14, 1991, as amended by Amendment No. 1 to Form 8-A on Form 8, dated December 9, 1991, and Amendment No. 2 on Form 8-A/A, dated May 2, 1997 (the "Form 8-A")) and free of any preemptive or similar rights (except for the required Capital Contributions (as defined in the Partnership Agreement) to the Partnership to be made by the General Partner pursuant to Section 4.4(c)(ii) of the Partnership Agreement), and the Underwriters will acquire such Units free and clear of any liens, encumbrances, security interests, charges or claims.
(f) Each of the Partnership and the Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the Delaware Revised Uniform Limited Partnership Act (the "Delaware Act"), with partnership power and authority to own or lease its properties and to conduct its business as described in the Final Prospectus and with respect to the Partnership, also to act as the sole member of Enbridge Pipelines (North Dakota) LLC, a North Dakota limited liability company ("Enbridge North Dakota"). , and as the sole member of Enbridge (East Texas) L.L.C., a Delaware limited liability company ("East Texas L.L.C.") Enbridge North Dakota has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of North Dakota, with full limited liability company power and authority to own or lease its properties and to conduct its business as described in the Final Prospectus. The Partnership is the sole member of Enbridge North DakotaDakota and East Texas L.L.C. East Texas L.L.C. has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Delaware, with full limited liability company power and authority to own or lease its properties, to conduct its business and to act as a general partner of the other East Texas Companies (as hereinafter defined), in each case as described in the Final Prospectus. Each of Enbridge Pipelines (East Texas) L.P., a Delaware limited partnership ("East Texas Pipelines L.P."), Enbridge Processing (East Texas) L.P., a Delaware limited partnership ("East Texas Processing L.P."), and Enbridge Marketing (East Texas) L.P., a Delaware limited partnership ("East Texas Marketing L.P.," and collectively with East Texas L.L.C., East Texas Pipelines L.P. and East Texas Processing L.P., the "East Texas Companies"), has been duly formed and is validly existing as a limited partnership in good standing under the Delaware Act, with partnership power and authority to own or lease its properties and to conduct its business as described in the Final Prospectus.
(g) The General Partner has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with the corporate power and authority to own or lease its properties, to conduct its businesses and to act as a general partner of the Partnership and the Operating Partnership, in each case as described in the Final Prospectus.
(h) The accountants, PricewaterhouseCoopers LLP, who have certified or shall certify the financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), are independent public accountants as required by the Act.
(i) The financial statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the Final Prospectus (and any amendment or supplement thereto), present fairly the consolidated financial position, results of operations and changes in financial position of the Partnership and the Operating Partnership on the basis stated in the Registration Statement at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; and the other financial and statistical information and data included or incorporated by reference in the Registration Statement and the Final Prospectus (and any amendment or supplement thereto) are accurately presented and prepared on a basis consistent with such financial statements and the books and records of the Companies.
(j) The execution and delivery of, and the performance by each of the Companies of its obligations under this Agreement have been duly and validly authorized by each of such Companies, as the case may be, and this Agreement has been duly executed and delivered by each of the Companies.
(k) Neither the offer, sale or delivery of the Offered Units, the execution, delivery or performance of this Agreement, compliance by any of the Companies with the provisions hereof nor consummation by any of the Companies of the transactions contemplated hereby constitutes a breach of, or a default under, the partnership agreement, certificate or articles of incorporation or bylaws, or other organizational documents, of any of the Companies or any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Companies or Companies, Enbridge North Dakota or the East Texas Companies is a party or by which any of them may be bound or to which any of their respective properties is subject, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable federal and state securities and Blue Sky laws), judgment, injunction, order or decree to which any of the Companies or Companies, Enbridge North Dakota or the East Texas Companies is a named party, excluding in each case any breaches, defaults or violations which, individually or in the aggregate, would not have a material adverse effect on the financial position, results of operations, business or prospects of the General Partner or the Partnership and the Operating Partnership (taken as a whole) (a "Material Adverse Effect").
(l) Except as disclosed in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), subsequent to the respective dates as of which such information is given in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), none of the Companies, the East Texas Companies nor or Enbridge North Dakota has incurred any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to the limited partners of the Partnership, the General Partner or the Partnership and the Operating Partnership (taken as a whole), and there has not been any change in the capital stock or partner's capital, or material increase in the short-term debt or long-term debt of, any of the Companies, or any material adverse change, or any development that the Partnership and the General Partner have reasonable cause to believe will involve a prospective material adverse change, in the financial position, business, prospects or results of operations of any of the CompaniesGeneral Partner, the Partnership and its subsidiaries (taken as a whole).
(m) None of the Companies has distributed and, prior to the later to occur of (i) the Closing Date and (ii) completion of the distribution of the Offered Units, will distribute any offering material in connection with the offering and sale of the Offered Units other than the Final Prospectus or other materials, if any, permitted by the Act.
(n) Except as disclosed in the Registration Statement and the Final Prospectus (or any amendment of supplement thereto), no more than ten percent of the net proceeds from the sale of the Offered Units are intended to be or will be paid to members of the National Association of Securities Dealers or associated or affiliated persons of such members, or members of the immediate family of such members.
(o) Except for the General Partner, who has waived such rights, no holder of any security of the Partnership or any other person has any right to require registration of Units or any other interest or other security of the Partnership because of the filing of the Registration Statement or consummation of the transactions contemplated by this Agreement.
(p) The General Partner has (excluding its interests in the Partnership and the Operating Partnership) a net worth of at least $35 million.
(q) Based upon the advice of counsel, none of the Companies, the East Texas Companies or Enbridge North Dakota is, or as of the Closing Date will be, an "Investment Company" as that term is defined in the Investment Company Act of 1940, as amended (the "Investment Company Act"), or required to register as an "Investment Company" under the Investment Company Act.
(r) Based upon the advice of counsel, none of the Companies, the East Texas Companies or Enbridge North Dakota is (i) a "public utility company," (ii) a "holding company," (iii) a "subsidiary company" of a "registered holding company" or of a "holding company" required to be registered under the Public Utility Holding Company Act of 1935, as amended (the "1935 Act"), or (iv) an "affiliate" of (A) a "registered holding company," (B) a "holding company" required to be registered under the 1935 Act, (C) a "subsidiary company" of a "registered holding company" or (D) a "subsidiary company" of a "holding company" required to be registered under the 1935 Act, as such terms are defined in the 1935 Act. The issuance and sale of the Offered Units as contemplated by the Final Prospectus is not subject to regulation under the 1935 Act.
(s) There are no legal or governmental proceedings pending or, to the knowledge of any of the Companies, threatened, against any of the Companies or Companies, Enbridge North DakotaDakota or the East Texas Companies, or to which any of the Companies or Companies, Enbridge North DakotaDakota or the East Texas Companies, or to which any of their respective properties, is subject, that are required to be described in the Registration Statement or the Final Prospectus and are not described as required.
(t) The States of Illinois, Indiana, Michigan, Minnesota, New York, North Dakota and Wisconsin are the only jurisdictions within the United States in which each of the Operating Partnership and General Partner, as applicable, owns or leases property, or conducts business as a foreign limited partnership or corporation, as applicable, so as to require the Operating Partnership or General Partner, as applicable, to qualify to conduct business as a foreign limited partnership or corporation, as applicable, and in which the failure to so qualify would be likely to have a Material Adverse Effect. The States of Minnesota Minnesota, Texas and Wisconsin are the only jurisdictions within the United States in which the Partnership owns or leases property, or conducts business as a foreign limited partnership so as to require the Partnership to qualify to conduct business as a foreign limited partnership and in which the failure to so qualify would be likely to have a Material Adverse Effect.
Appears in 1 contract
Samples: Underwriting Agreement (Enbridge Energy Partners Lp)
REPRESENTATIONS AND WARRANTIES OF THE COMPANIES. Each of the The Companies represents represent and warrants to warrant to, and agree with, each Underwriter that:
(a) The Basic Prospectus included as part of Companies have prepared and filed with the Registration Statement as originally filed or as part of any amendment or supplement thereto complied when so filed Securities and Exchange Commission (the "Commission") in all material respects accordance with the provisions of the Securities Act of 1933, as amended (the "Act"), the Trust Indenture Act of 1939, as amended ("Trust Indenture Act"), and the rules and regulations of the Commission ("Rules and Regulations"), a registration statement on Form S-3 (File No. 333-_______), including a combined prospectus, relating to certain of the debt securities, preference shares of TEL, ordinary shares of TEL and warrants of the Companies (including the Securities) and has become effective. Such registration statement, as amended at the date hereof, is hereinafter referred to as the "Registration Statement", and the combined prospectus included in such Registration Statement, as supplemented as contemplated by Section 3 to reflect the terms of the Securities and the terms of offering thereof, as first filed with the Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act, including all materials incorporated by reference therein, is hereinafter referred to as the "Prospectus".
(b) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects to the requirements of the Act, the Trust Indenture Act of 1939 ("Trust Indenture Act") and the rules and regulations of the Commission ("Rules and Regulations") and did not contain an include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that this representation and warranty does not apply to statements in or omissions from the Basic Prospectus made in reliance upon and in conformity with information relating to any Underwriters furnished to the Partnership in writing by or on behalf of any Underwriters expressly for use therein. To the best of each of the Companies' knowledge, information and belief, having made reasonable inquiries, the Commission has not issued any order preventing or suspending the use of the Basic Prospectus.
(b) The Partnership and the offering of the Offered Units contemplated by this Agreement meet the requirements for using Form S-3 under the Act. The Registration Statement in the form in which it became or becomes effective and also in such form as it may be when any post-effective amendment thereto shall become effective and the Final Prospectus and any supplement or amendment thereto when filed with the Commission under Rule 424(b) and at the Closing Date and if applicable, at the Option Closing Date, complied or will comply in all material respects with the provisions of the Act, and will not at any such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and on the date hereof, the Registration Statement and the statements made Prospectus conform in all respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, and, on the Closing Date (as hereinafter defined), neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be made stated therein or necessary to make the statements therein (in such documents that are covered by Rule 175(bthe case of the Prospectus, in light of the circumstances under which they were made) under the Act were made or will be made with a reasonable basis and in good faithnot misleading, except that this representation and warranty the foregoing does not apply to (i) statements in or omissions from any of such documents based upon written information furnished to the Companies by any Underwriter through the Representatives, if any, specifically for use therein and (ii) that part of the Registration Statement or that constitutes the Final Prospectus made in reliance upon Statement of Eligibility and in conformity with information relating to any Underwriters furnished to Qualification (Form T-1) of the Partnership in writing by or on behalf of any Underwriters expressly for use thereinTrustee under the Trust Indenture Act.
(c) Each of the Companies is duly incorporated and is validly existing and in good standing as a company or corporation, as applicable, under the laws of its jurisdiction of incorporation, with corporate power and authority to own its respective properties and conduct its respective business as described in the Prospectus; and each is duly qualified to do business as a foreign corporation in good standing in all jurisdictions in which it owns or leases substantial properties or in which the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not have a material adverse effect on the business, properties, operations, financial condition or results of operations of TEL and its subsidiaries taken as a whole.
(d) This Agreement has been duly authorized, executed and delivered by the Companies and constitutes a valid and legally binding obligation of the Companies enforceable against the Companies in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law), an implied covenant of good faith and fair dealing and considerations of public policy in respect of the indemnification provisions hereof.
(e) The Incorporated Documents heretofore filedIndenture has been duly authorized by the Companies and, when they executed and delivered by the Companies and the Trustee and qualified under the Trust Indenture Act, will constitute a valid and legally binding instrument of the Companies enforceable against the Companies in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. The Indenture conforms in all material, respects to the description thereof set forth in the Prospectus.
(f) The documents incorporated by reference in the Prospectus, at the time such documents were filed (orwith the Commission, if any amendment with respect complied as to any such document was filed, when such amendment was filed), conformed form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act; any further Incorporated Documents so filed will, when they are filed, conform in all material respects with ") and the requirements applicable rules and regulations of the Exchange Act; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleadingCommission thereunder.
(dg) The capitalization of Since the Partnership respective dates as of September 30which information is given in the Registration Statement, 2001 was except as set forth in the Final Prospectus under "Capitalization."
(e) The Offered Units Prospectus, there has not been any material adverse change in the business, properties, operations, financial condition or results of operations of TEL and its subsidiaries taken as a whole, and since the limited partner interests represented thereby are authorized by the Partnership Agreement and, when issued, delivered and paid for in accordance with Section 4 hereof, will be validly issued, fully paid and non-assessable (except as such non-assessability may be affected by the matters described under the caption "Summary Description date of the Partnership Agreement -- Limited Liability" latest consolidated balance sheet of TEL and its subsidiaries included in Amendment No. 3 the Registration Statement, neither TEL nor any of its subsidiaries has incurred or undertaken any liabilities or obligations, direct or contingent, that are material to the Partnership's Registration Statement on Form S-1 (Registration No. 33-43425) which is incorporated by reference into the Partnership's Registration Statement on Form 8-Abusiness, dated November 14properties, 1991operations, financial condition or results of operations of TEL and its subsidiaries taken as amended by Amendment No. 1 to Form 8-A on Form 8a whole, dated December 9, 1991, and Amendment No. 2 on Form 8-A/A, dated May 2, 1997 (the "Form 8-A")) and free of any preemptive or similar rights (except for the required Capital Contributions (as defined liabilities or obligations that were incurred or undertaken in the Partnership Agreement) to the Partnership to be made by the General Partner pursuant to Section 4.4(c)(ii) ordinary course of the Partnership Agreement), and the Underwriters will acquire such Units free and clear of any liens, encumbrances, security interests, charges business or claims.
(f) Each of the Partnership and the Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the Delaware Revised Uniform Limited Partnership Act (the "Delaware Act"), with partnership power and authority to own or lease its properties and to conduct its business as described that are adequately reflected in the Final Prospectus and with respect to the Partnership, also to act as the sole member of Enbridge Pipelines (North Dakota) LLC, a North Dakota limited liability company ("Enbridge North Dakota"). Enbridge North Dakota has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of North Dakota, with full limited liability company power and authority to own or lease its properties and to conduct its business as described in the Final Prospectus. The Partnership is the sole member of Enbridge North Dakota.
(g) The General Partner has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with the corporate power and authority to own or lease its properties, to conduct its businesses and to act as a general partner of the Partnership and the Operating Partnership, in each case as described in the Final ProspectusRegistration Statement.
(h) The accountantsSecurities have been duly authorized by the Companies and, PricewaterhouseCoopers LLPwhen authenticated by the Trustee and issued and sold by the Companies pursuant to this Agreement against payment therefor, who will constitute, valid and legally binding obligations of the Companies enforceable against the Companies in accordance with their terms and entitled to the benefits of the Indenture, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. The Securities, when issued, will conform in all material respects to the description thereof set forth in the Prospectus.
(i) The execution, delivery and performance of the Indenture, this Agreement and the issuance and sale of the Securities and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, or conflict with any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Companies or any of their properties or the charter or by-laws of the Companies, or any agreement or instrument to which either of the Companies is a party or by which either of the Companies is bound or to which any of the properties of either of the Companies is subject, and will not result in the imposition or creation of any lien upon any property of either of the Companies, in each case that has had or could reasonably be expected to have certified a material adverse effect on the business, properties, operations, financial condition or shall certify results of operations of TEL and its subsidiaries taken as a whole; and the Companies have full power and authority to authorize, issue and sell the Securities as contemplated by the provisions of this Agreement.
(j) The consolidated financial statements included or of TEL and its subsidiaries, together with the related schedules and notes, incorporated by reference in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), are independent public accountants as required by the Act.
(i) The financial statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the Final Prospectus (and any amendment or supplement thereto), present fairly in all material respects the consolidated financial position, results of operations operations, cash flow and changes stockholder's equity of TEL and its consolidated subsidiaries in financial position of the Partnership and the Operating Partnership conformity with generally accepted accounting principles on the basis stated in the Registration Statement at the respective dates or and for the respective periods to which they apply; such financial statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; and the other financial and statistical information and data included or incorporated by reference with respect to TEL and its subsidiaries set forth in the Registration Statement present fairly the information purported to be shown thereby at the respective dates or for the respective periods to which they apply and the Final Prospectus (and any amendment or supplement thereto) are accurately presented and have been prepared on a basis consistent with such financial statements and the books and records of the Companies.
(j) The execution and delivery of, and the performance by each of the Companies of its obligations under this Agreement have been duly and validly authorized by each of such Companies, as the case may be, and this Agreement has been duly executed and delivered by each of the CompaniesTEL.
(k) Neither the offer, sale or delivery of the Offered Units, the execution, delivery or performance of this Agreement, compliance by any of the Companies with the provisions hereof nor consummation by any of the Companies of the transactions contemplated hereby constitutes a breach of, or a default under, the partnership agreement, certificate or articles of incorporation or bylaws, or other organizational documents, of any of the Companies or any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Companies or Enbridge North Dakota is a party or by which any of them Except as may be bound or to which any of their respective properties is subject, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable federal and state securities and Blue Sky laws), judgment, injunction, order or decree to which any of the Companies or Enbridge North Dakota is a named party, excluding in each case any breaches, defaults or violations which, individually or set forth in the aggregateProspectus, would not have a material adverse effect on the financial position, results of operations, business or prospects of the General Partner or the Partnership and the Operating Partnership (taken as a whole) (a "Material Adverse Effect").
(l) Except as disclosed in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), subsequent to the respective dates as of which such information is given in the Registration Statement and the Final Prospectus (or any amendment or supplement thereto), none of the Companies nor Enbridge North Dakota has incurred any liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to the limited partners of the Partnership, the General Partner or the Partnership and the Operating Partnership (taken as a whole), and there has not been any change in the capital stock or partner's capital, or material increase in the short-term debt or long-term debt of, any of the Companies, or any material adverse change, or any development that the Partnership and the General Partner have reasonable cause to believe will involve a prospective material adverse change, in the financial position, business, prospects or results of operations of any of the Companies.
(m) None of the Companies has distributed and, prior to the later to occur of (i) the Closing Date and (ii) completion of the distribution of the Offered Units, will distribute any offering material in connection with the offering and sale of the Offered Units other than the Final Prospectus or other materials, if any, permitted by the Act.
(n) Except as disclosed in the Registration Statement and the Final Prospectus (or any amendment of supplement thereto), no more than ten percent of the net proceeds from the sale of the Offered Units are intended to be or will be paid to members of the National Association of Securities Dealers or associated or affiliated persons of such members, or members of the immediate family of such members.
(o) Except for the General Partner, who has waived such rights, no holder of any security of the Partnership or any other person has any right to require registration of Units or any other interest or other security of the Partnership because of the filing of the Registration Statement or consummation of the transactions contemplated by this Agreement.
(p) The General Partner has (excluding its interests in the Partnership and the Operating Partnership) a net worth of at least $35 million.
(q) Based upon the advice of counsel, none of the Companies is, or as of the Closing Date will be, an "Investment Company" as that term is defined in the Investment Company Act of 1940, as amended (the "Investment Company Act"), or required to register as an "Investment Company" under the Investment Company Act.
(r) Based upon the advice of counsel, none of the Companies is (i) a "public utility company," (ii) a "holding company," (iii) a "subsidiary company" of a "registered holding company" or of a "holding company" required to be registered under the Public Utility Holding Company Act of 1935, as amended (the "1935 Act"), or (iv) an "affiliate" of (A) a "registered holding company," (B) a "holding company" required to be registered under the 1935 Act, (C) a "subsidiary company" of a "registered holding company" or (D) a "subsidiary company" of a "holding company" required to be registered under the 1935 Act, as such terms are defined in the 1935 Act. The issuance and sale of the Offered Units as contemplated by the Final Prospectus is not subject to regulation under the 1935 Act.
(s) There are no legal or governmental proceedings pending or, to the knowledge of any of the Companies, threatened, against any threatened to which either of the Companies is a party or Enbridge North Dakota, or to which any of the Companies or Enbridge North Dakota, or to which any of their respective properties, properties or assets is subject, the subject that are required to be described in the Registration Statement or the Final Prospectus and are not so described. There is no statute, regulation, contract or other document of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not so described or filed as required.
(tl) The States of IllinoisNo consent, Indianaapproval, Michiganauthorization or order of, Minnesotaor filing with, New York, North Dakota and Wisconsin are any governmental agency or body or any court is required for the only jurisdictions within the United States in which each consummation of the Operating Partnership transactions contemplated by this Agreement in connection with the issuance or sale of the Securities by the Companies, except such as have been obtained and General Partner, made under the Act and the Trust Indenture Act and such as applicable, owns or leases property, or conducts business as a foreign limited partnership or corporation, as applicable, so as to require the Operating Partnership or General Partner, as applicable, to qualify to conduct business as a foreign limited partnership or corporation, as applicable, and in which the failure to so qualify would may be likely to have a Material Adverse Effect. The States of Minnesota and Wisconsin are the only jurisdictions within the United States in which the Partnership owns or leases property, or conducts business as a foreign limited partnership so as to require the Partnership to qualify to conduct business as a foreign limited partnership and in which the failure to so qualify would be likely to have a Material Adverse Effectrequired under applicable state securities laws.
Appears in 1 contract
