Exhibit 1.1
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2,200,000 Class A Common Units
LAKEHEAD PIPE LINE PARTNERS, L.P.
Representing Class A Limited Partner Interests
UNDERWRITING AGREEMENT
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October __, 1997
XXXXX XXXXXX INC.
XXXXXXX, XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
As Representatives of the several Underwriters
named in Schedule I hereto
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Lakehead Pipe Line Partners, L.P., a Delaware limited partnership (the
"Partnership"), proposes, upon the terms and subject to the conditions set forth
herein, to issue and sell an aggregate of 2,200,000 Class A Common Units
representing Class A limited partner interests in the Partnership (the "Firm
Units") to the several Underwriters named in Schedule I hereto (the
"Underwriters"). The Partnership also proposes, upon the terms and subject to
the conditions set forth herein, to issue and sell to the several Underwriters
up to an additional 330,000 Class A Common Units representing Class A limited
partner interests in the Partnership (the "Additional Units"). The Firm Units
and the Additional Units are hereinafter collectively referred to as the
"Offered Units," and the Offered Units and each unit representing a Class A
Common or Class B Common limited partner interest outstanding on the date hereof
are hereinafter sometimes collectively referred to as the "Units."
Each of the Partnership, Lakehead Pipe Line Company, Limited Partnership, a
Delaware limited partnership (the "Operating Partnership"), and Lakehead Pipe
Line Company, Inc., a Delaware corporation (both in its capacity as general
partner of the Partnership and in its individual capacity, the "General
Partner"), wishes to confirm as follows its agreement with you (the
"Representatives") and the other several Underwriters on whose behalf you are
acting, in connection with the several purchases of the Offered Units by the
Underwriters. The Partnership, the Operating Partnership and the General
Partner are sometimes collectively referred to herein as the "Companies."
1. Registration Statement and Prospectus. The Partnership has prepared
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and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission
thereunder (collectively, the "Act"), a registration statement on Form S-3 under
the Act (the "registration statement"), including a prospectus subject to
completion relating to the Offered Units. The term "Registration Statement" as
used in this Agreement means the registration statement (including all financial
schedules and exhibits), as amended at the time it becomes effective, or, if the
registration statement became effective prior to the execution of this
Agreement, as supplemented or amended prior to the execution of this Agreement.
If it is contemplated, at the time this Agreement is executed, that a post-
effective amendment to the registration statement will be filed and must be
declared effective before the offering of the Offered Units may commence, the
term "Registration Statement" as used in this Agreement means the registration
statement as amended by said post-effective amendment. If it is contemplated,
at the time this Agreement is executed, that a registration statement will be
filed pursuant to Rule 462(b) under the Act before the offering of the Offered
Units may commence, the term "Registration Statement" as used in this Agreement
includes such registration statement. The term "Prospectus" as used in this
Agreement means the prospectus in the form included in the Registration
Statement, or, if the prospectus included in the Registration Statement omits
information in reliance on Rule 430A under the Act and such information is
included in a prospectus filed with the Commission pursuant to Rule 424(b) under
the Act, the term "Prospectus" as used in this Agreement means the prospectus in
the form included in the Registration Statement as supplemented by the addition
of the Rule 430A information contained in the prospectus filed with the
Commission pursuant to Rule 424(b). The term "Prepricing Prospectus" as used in
this Agreement means the prospectus subject to completion in the form included
in the registration statement at the time of the initial filing of the
registration statement with the Commission, and as such prospectus shall have
been amended from time to time prior to the date of the Prospectus. Any
reference in this Agreement to the registration statement, the Registration
Statement, any Prepricing Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Act, as of the date of the registration statement, the
Registration Statement, such Prepricing Prospectus or the Prospectus, as the
case may be, and any reference to any amendment or supplement to the
registration statement, the Registration Statement, any Prepricing Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed after
such date under the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission thereunder (the "Exchange Act") which, upon
filing, are incorporated by reference therein, as required by paragraph (b) of
Item 12 of Form S-3. As used herein, the term "Incorporated Documents" means
the documents which at the time are incorporated by reference in the
registration statement, the Registration Statement, any Prepricing Prospectus,
the Prospectus, or any amendment or supplement thereto.
2. Agreements to Sell and Purchase. The Partnership hereby agrees, upon
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the terms and subject to all the conditions set forth herein, to issue and sell
to each Underwriter and, upon the basis of the representations, warranties and
agreements of the Companies herein contained and upon the terms and subject to
all the conditions set forth herein, each Underwriter agrees, severally and not
jointly, to purchase from the Partnership, at a purchase price of $_____ per
Unit (the "Purchase Price Per Unit"), the number of Firm Units set forth
opposite the name of such
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Underwriter in Schedule I hereto (or such number of Firm Units increased as set
forth in Section 10 hereof).
The Partnership also hereby agrees, upon the terms and subject to all the
conditions set forth herein, to sell to the Underwriters, and, upon the basis of
the representations, warranties and agreements of the Companies herein contained
and upon the terms and subject to all the conditions set forth herein, the
Underwriters shall have the right to purchase from the Partnership at the
Purchase Price Per Unit, pursuant to an option (the "over-allotment
option") which may be exercised at any time and from time to time prior to 9:00
P.M., New York City time, on the 30th day after the date of the Prospectus (or,
if such 30th day shall be a Saturday or Sunday or a holiday, on the next
business day thereafter when the New York Stock Exchange is open for trading),
up to an aggregate of 330,000 Additional Units. Additional Units may be
purchased only for the purpose of covering over-allotments made in connection
with the offering of the Firm Units. Upon any exercise of the over-allotment
option, each Underwriter, severally and not jointly, agrees to purchase from the
Partnership the number of Additional Units (subject to such adjustments as you,
as Representatives of the several Underwriters, may determine in order to avoid
fractional Units) which bears the same proportion to the aggregate number of
Additional Units to be purchased by the Underwriters as the number of Firm Units
set forth opposite the name of such Underwriter in Schedule I hereto (or such
number of Firm Units increased as set forth in Section 10 hereof) bears to the
aggregate number of the Firm Units.
3. Terms of Public Offering. The Partnership has been advised by you, as
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Representatives of the several Underwriters, that the Underwriters propose to
make a public offering of their respective portions of the Offered Units as soon
after the Registration Statement and this Agreement have become effective as in
your judgment is advisable and initially to offer the Offered Units upon the
terms set forth in the Prospectus.
4. Delivery of the Offered Units and Payment Therefor. Delivery to the
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Underwriters of and payment for the Firm Units shall be made at the office of
[XXXXX XXXXXX INC., 000 XXXXXXXXX XXXXXX, XXX XXXX, XX 00000], at 10:00 A.M.,
New York City time, on October __, 1997 (the "Closing Date"). The place of
closing for the Firm Units and the Closing Date may be varied by agreement
between you and the Partnership.
Delivery to the Underwriters of and payment for any Additional Units to be
purchased by the Underwriters shall be made at the aforementioned office of
Xxxxx Xxxxxx Inc. at such time on such date (the "Option Closing Date"), which
may be the same as the Closing Date but shall in
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no event be earlier than the Closing Date nor earlier than three nor later than
ten business days after the giving of the notice hereinafter referred to, as
shall be specified in a written notice from you on behalf of the Underwriters to
the Partnership of the Underwriters' determination to purchase a number,
specified in such notice, of Additional Units. The place of closing for any
Additional Units and the Option Closing Date for such Units may be varied by
agreement between you and the Partnership.
Certificates for the Firm Units and any Additional Units which the
Underwriters may elect to purchase will be delivered to you for the accounts of
the several Underwriters, against payment of the purchase price therefor in
Federal (same day) funds, and registered in such names and in such denominations
as you shall request prior to 1:00 P.M., New York City time, on the third
business day preceding the Closing Date or the Option Closing Date, as the case
may be. If registration of any certificate to be delivered on a Closing Date
shall be requested in a name other than that of an Underwriter, there shall be
delivered to ChaseMellon Shareholder Services, L.L.C., as a condition precedent
to the delivery of such certificate in such name, a Transfer Application (as
defined in the Amended and Restated Agreement of Limited Partnership of the
Partnership (the "Partnership Agreement")) with respect to the person in whose
name registration of such certificate is so requested. Certificates for the
Offered Units to be delivered to the Underwriters shall be made available to you
in New York City for inspection and packaging not later than 9:30 A.M., New York
City time, on the business day next preceding the Closing Date or the Option
Closing Date, as the case may be.
5. Agreements of the Companies. Each of the Companies agrees with the
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several Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Offered Units may commence,
the Partnership and the General Partner will endeavor to cause the Registration
Statement or such post-effective amendment to become effective as soon as
possible and will advise you promptly and, if requested by you, will confirm
such advice in writing, when the Registration Statement or such post-effective
amendment has become effective.
(b) The Partnership and the General Partner will advise you promptly
and, if requested by you, will confirm such advice in writing: (i) of any
request by the Commission for amendment of or a supplement to the Registration
Statement, any Prepricing Prospectus or the Prospectus or for additional
information; (ii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of the suspension of
qualification of the Offered Units for offering or sale in any jurisdiction or
the initiation of any proceeding for such purpose; and (iii) within the period
of time referred to in paragraph (f) below, of any change in the financial
position, business, prospects, or results of operations of any of the Companies,
or of the happening of any event, which makes any statement of a material fact
made in the Registration Statement or the Prospectus (as then amended or
supplemented) untrue or which
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requires the making of any additions to or changes in the Registration Statement
or the Prospectus (as then amended or supplemented) in order to state a material
fact required by the Act to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or supplement
the Prospectus (as then amended or supplemented) to comply with the Act or any
other law. If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, the Partnership and the General
Partner will make every reasonable effort to obtain the withdrawal of such order
at the earliest possible time.
(c) The Partnership and the General Partner will furnish to you, at
your request and without charge (i) four signed copies of the registration
statement as originally filed with the Commission and of each amendment thereto,
including financial statements and all exhibits to the registration statement,
(ii) such number of conformed copies of the registration statement as originally
filed and of each amendment thereto, but without exhibits, as you may request,
(iii) such number of copies of the Incorporated Documents, without exhibits, as
you may request, and (iv) four copies of the exhibits to the Incorporated
Documents.
(d) Neither the Partnership nor the General Partner will file any
amendment to the Registration Statement or make any amendment or supplement to
the Prospectus or, prior to the end of the period of time referred to in the
first sentence in subsection (f) below, file any document which, upon filing
becomes an Incorporated Document, of which you shall not previously have been
advised or to which, after you shall have received a copy of the document
proposed to be filed, you shall reasonably object; provided that your consent
shall not be unreasonably withheld or delayed.
(e) Prior to the execution and delivery of this Agreement, the
Partnership and the General Partner have delivered to you, without charge, in
such quantities as you have requested, copies of each form of the Prepricing
Prospectus. The Partnership and the General Partner consent to the use, in
accordance with the provisions of the Act and with the securities or Blue Sky
laws of the jurisdictions in which the Offered Units are offered by the several
Underwriters and by dealers, prior to the date of the Prospectus, of each
Prepricing Prospectus so furnished by the Partnership and the General Partner.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the opinion of
counsel for the Underwriters a prospectus is required by the Act to be delivered
in connection with sales by any Underwriter or dealer, the Partnership and the
General Partner will expeditiously deliver to each Underwriter and each dealer,
without charge, as many copies of the Prospectus (and of any amendment or
supplement thereto) as you may reasonably request. The Partnership and the
General Partner consent to the use of the Prospectus (and of any amendment or
supplement thereto) in accordance with the provisions of the Act and with the
securities or Blue Sky laws of the jurisdictions in which the Offered Units are
offered by the several Underwriters and by all dealers to whom Offered Units may
be sold, both in connection with the offering and sale of the Offered Units and
for such period of time thereafter as the Prospectus is required by the Act to
be delivered in
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connection with sales by any Underwriter or dealer. If during such period of
time any event shall occur that in the judgment of the Partnership or the
General Partner or in the opinion of counsel for the Underwriters is required to
be set forth in the Prospectus (as then amended or supplemented) or should be
set forth therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
to supplement or amend the Prospectus (or to file under the Exchange Act any
document which, upon filing, becomes an Incorporated Document) in order to
comply with the Act or any other law, the Partnership and the General Partner
will forthwith prepare and, subject to the provisions of paragraph (d) above,
file with the Commission an appropriate supplement or amendment thereto (or to
such document), and will expeditiously furnish to the Underwriters and dealers a
reasonable number of copies thereof. In the event that the Partnership or the
General Partner and the several Underwriters agree that the Prospectus should be
amended or supplemented, the Partnership and the General Partner, if requested
by you, will promptly issue a press release announcing or disclosing the matters
to be covered by the proposed amendment or supplement.
(g) The Partnership and the General Partner will cooperate with you
and with counsel for the Underwriters in connection with the registration or
qualification of the Offered Units for offering and sale by the several
Underwriters and by dealers under the securities or Blue Sky laws of such
jurisdictions as you may designate and will file such consents to service of
process or other documents necessary or appropriate in order to effect such
registration or qualification; provided that in no event shall the Partnership
be obligated to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action which would subject it to service of process
in suits, other than those arising out of the offering or sale of the Offered
Units, in any jurisdiction where it is not now so subject.
(h) The Partnership and the General Partner will make generally
available to security holders of the Partnership a consolidated earnings
statement, which need not be audited, covering a twelve-month period commencing
after the effective date of the Registration Statement and ending not later than
15 months thereafter, as soon as practicable after the end of such period, which
consolidated earnings statement shall satisfy the provisions of Section 11(a) of
the Act.
(i) During the period of two years after the date of this Agreement,
the Partnership and the General Partner will furnish to you (i) as soon as
available, a copy of each report of the Partnership mailed to holders of Units
or filed with the Commission, and (ii) from time to time such other publicly
available information concerning any of the Companies as you may request.
(j) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 hereof or by notice given by you terminating this
Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement
shall be terminated by the Underwriters because of any failure or refusal on the
part of any of the Companies to comply with the terms or fulfill any of the
conditions of this Agreement, the Partnership and the General Partner, jointly
and severally, agree
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to reimburse the Underwriters for all out-of-pocket expenses (including
reasonable fees and expenses of counsel for the Underwriters) incurred by the
Underwriters in connection herewith.
(k) The Partnership will apply the net proceeds from the sale of the
Offered Units substantially in accordance with the description set forth in the
Prospectus.
(l) If Rule 430A of the Act is employed, the Partnership will timely
file the Prospectus pursuant to Rule 424(b) under the Act and will advise you of
the time and manner of such filing.
(m) Except as provided in this Agreement, neither the Partnership nor
the General Partner will sell, contract to sell or otherwise dispose of any
Units or any securities substantially similar to, convertible into or
exercisable or exchangeable for Units, or grant any options or warrants to
purchase any Units or any such securities, for a period of 90 days after the
date of the Prospectus, without the prior written consent of Xxxxx Xxxxxx Inc.
(n) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, none of the Companies has taken, nor will take,
directly or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the price of the
Units to facilitate the sale or resale of the Offered Units.
(o) The Partnership and the General Partner will use their best
efforts to have the Offered Units listed, subject to notice of issuance, on the
New York Stock Exchange on or before the Closing Date.
(p) Upon the issuance of the Offered Units by the Partnership, the
General Partner shall make the additional capital contributions to the
Partnership as required by Section 4.4(c) of the Partnership Agreement.
6. Representations and Warranties of the Companies. Each of the Companies
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represents and warrants to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement 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
any Prepricing Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Partnership in writing
by or on behalf of any Underwriter expressly for use therein. To the best of
each of the Companies' knowledge, information and belief, having made reasonable
inquiries, the
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Commission has not issued any order preventing or suspending the use of 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 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 Prospectus and any supplement or amendment thereto when
filed with the Commission under Rule 424(b) under the Act, 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 Prospectus made in reliance upon and in conformity with information relating
to any Underwriter furnished to the Partnership in writing by or on behalf of
any 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 is as set forth in the
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-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
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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) The accountants, Price Waterhouse LLP, who have certified or shall
certify the financial statements included or incorporated by reference in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto), are independent public accountants as required by the Act.
(g) The financial statements, together with related schedules and
notes, included or incorporated by reference in the Registration Statement and
the 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 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.
(h) 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 and, based upon the
advice of counsel, constitutes the valid and legally binding agreement of each
of the Companies, enforceable against each of the Companies in accordance with
its terms, except (i) as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws and (ii) as enforcement generally
may be subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors rights and to general
equitable principles.
(i) Except as disclosed in the Registration Statement and the
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 Prospectus (or any amendment or supplement thereto), none of
the Companies nor Lakehead Services, Limited Partnership, a Delaware limited
partnership (the "LPL Partnership"), 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.
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(j) 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 Registration Statement,
the Prepricing Prospectus, the Prospectus or other materials, if any, permitted
by the Act.
(k) 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.
(l) 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.
(m) The General Partner has (excluding its interests in the
Partnership and the Operating Partnership) a net worth of at least $35 million.
(n) 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 subject to regulation under the Investment Company Act.
(o) Based upon the advice of counsel, none of the Companies or the LPL
Partnership is (i) a "public utility company," (ii) a "holding company," (iii) a
"subsidiary company" of a "registered holding company" or of a "holding company"
subject to regulation 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"subject to regulation under the 1935 Act, (C) a
"subsidiary company" of a "registered holding company" or (D) a "subsidiary
company" of a "holding company"subject to regulation under the 1935 Act, as such
terms are defined in the 1935 Act. Based upon the advice of counsel, the
issuance and sale of the Offered Units as contemplated by the Prospectus is not
subject to regulation under the 1935 Act.
(p) There are no legal or governmental proceedings pending or, to the
knowledge of any of the Companies, threatened, against any of the Companies or
the LPL Partnership, or to which any of the Companies or the LPL Partnership, or
to which any of their respective properties, is subject, that are required to be
described in the Registration Statement or the Prospectus and are not described
as required.
7. Indemnification and Contribution. (a) Each of the Companies, jointly
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and severally, agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act
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from and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Prepricing Prospectus or in the Registration Statement or the Prospectus or in
any amendment or supplement thereto, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses arise
out of or are based upon any untrue statement or omission or alleged untrue
statement or omission which has been made therein or omitted therefrom in
reliance upon and in conformity with the information relating to such
Underwriter furnished in writing to the Partnership by or on behalf of any
Underwriter expressly for use in connection therewith; provided, however, that
the indemnification contained in this paragraph (a) with respect to any
Prepricing Prospectus shall not inure to the benefit of any Underwriter (or to
the benefit of any person controlling such Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) on account of any such
loss, claim, damage, liability or expense arising from the sale of the Offered
Units by such Underwriter to any person if a copy of the Prospectus shall not
have been delivered or sent to such person within the time required by the Act,
and the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in such Prepricing Prospectus was
corrected in the Prospectus, provided that the Partnership has delivered the
Prospectus to the several Underwriters in requisite quantities on a timely basis
to permit such delivery or sending. The foregoing indemnity agreement shall be
in addition to any liability which any of the Companies may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act in respect of which
indemnity may be sought against any of the Companies, such Underwriter or such
controlling person shall promptly notify the General Partner on behalf of the
Companies, and the Companies shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Underwriters and payment of
all fees and expenses. Such Underwriter or any such controlling person shall
have the right to employ separate counsel in any such action, suit or proceeding
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such controlling person
unless (i) the Companies have agreed in writing to pay such fees and expenses,
(ii) the Companies have failed to assume the defense and employ counsel
reasonably satisfactory to the Underwriters or (iii) the named parties to any
such action, suit or proceeding (including any impleaded parties) include both
such Underwriter or such controlling person and any of the Companies and such
Underwriter or such controlling person shall have been advised by its counsel
that representation of such indemnified party and one or more of the Companies
by the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same counsel has
been proposed) due to actual or potential differing interests between them (in
which case the Companies shall not have the right to assume the defense of such
action, suit or proceeding on behalf of such Underwriter or such controlling
person). It is understood, however, that the Companies shall, in connection
with any one such action, suit or proceeding or separate but substantially
similar or related actions, suits or
11
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Underwriters and controlling persons not having actual or potential
differing interests with you, which firm shall be designated in writing by Xxxxx
Xxxxxx Inc., and that all such fees and expenses shall be reimbursed as they are
incurred. None of the Companies shall be liable for any settlement of any such
action, suit or proceeding effected without its written consent, but if settled
with such written consent, or if there be a final judgment for the plaintiff in
any such action, suit or proceeding, each of the Companies, jointly and
severally, agrees to indemnify and hold harmless any Underwriter, to the extent
provided in the preceding paragraph, and any such controlling person from and
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless each of the Companies, the directors of the General Partner,
the officers of the General Partner who sign the Registration Statement, and any
person who controls any of the Companies within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Companies to each Underwriter, but only with respect to
information relating to such Underwriter furnished in writing by or on behalf of
such Underwriter expressly for use in the Registration Statement, the Prospectus
or any Prepricing Prospectus, or any amendment or supplement thereto. If any
action, suit or proceeding shall be brought against any of the Companies, any of
the directors of the General Partner, any such officer of the General Partner,
or any such controlling person based on the Registration Statement, the
Prospectus or any Prepricing Prospectus, or any amendment or supplement thereto,
and in respect of which indemnity may be sought against any Underwriter pursuant
to this paragraph (c), such Underwriter shall have the rights and duties given
to the Companies by paragraph (b) above (except that if the Companies shall have
assumed the defense thereof such Underwriter shall not be required to do so, but
may employ separate counsel therein and participate in the defense thereof, but
the fees and expenses of such counsel shall be at such Underwriter's expense),
and the Companies, the directors of the General Partner, any such officer of the
General Partner, and any such controlling person, shall have the rights and
duties given to the Underwriters by paragraph (b) above. The foregoing
indemnity agreement shall be in addition to any liability which the Underwriters
may otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Companies on the one hand and the Underwriters on the other hand from the
offering of the Offered Units, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Companies on the one hand and the Underwriters on
the other hand in
12
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Companies on
the one hand and the Underwriters on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Partnership bear to the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus; provided that, in the event that the
Underwriters shall have purchased any Additional Units, hereunder, any
determination of the relative benefits received by the Companies or the
Underwriters from the offering of the Offered Units shall include the net
proceeds (before deducting expenses) received by the Partnership and the
underwriting discounts and commissions received by the Underwriters, from the
sale of such Additional Units, in each case computed on the basis of the
respective amounts set forth in the notes to the table on the cover page of the
Prospectus. The relative fault of the Companies on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Companies on the one hand or by the Underwriters on the other
hand and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission, including, with
respect to any Underwriter, the extent to which any such loss, claim, damage or
liability arises from the sale of Offered Units by such Underwriter to any
person if a copy of the Prospectus shall not have been delivered or sent to such
person within the time required by the Act, and the untrue statement or alleged
untrue statement or omission or alleged omission of a material fact contained in
the Prepricing Prospectus was corrected in the Prospectus, provided that the
Partnership has delivered the Prospectus to the several Underwriters in
requisite quantity on a timely basis to permit such delivery or sending.
(e) The Companies and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by a
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities and expenses referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating any claim or defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price of the Offered Units underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 7 are several
in proportion to the respective numbers of Firm Units set forth opposite their
names in Schedule I hereto (or such numbers of Firm Units increased as set forth
in Section 10 hereof) and not joint.
13
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Companies set forth in this Agreement
shall remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, any of the Companies, the directors of the General Partner or
officers of the General Partner, or any person controlling any of the Companies,
(ii) acceptance of any Offered Units and payment therefor hereunder, and (iii)
any termination of this Agreement. A successor to any Underwriter or any person
controlling any Underwriter, or to any of the Companies or the directors or
officers of the General Partner, or any person controlling any of the Companies,
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 7. The term "successor," as
used in this Agreement, shall not include a purchaser from any Underwriter of
any Units in his status as a purchaser.
8. Conditions of Underwriters' Obligations. The several obligations of
---------------------------------------
the Underwriters to purchase the Firm Units hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the registration statement or a post-effective amendment thereto
to be declared effective before the offering of the Offered Units may commence,
the registration statement or such post-effective amendment shall have become
effective not later than 5:30 P.M., New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by you, as
Representatives of the several Underwriters, and all filings, if any, required
by Rules 424 and 430A under the Act shall have been timely made; no stop order
suspending the effectiveness of the registration statement shall have been
issued and no proceeding for that purpose shall have been instituted or, to the
knowledge of any of the Companies or any Underwriter, threatened by the
Commission, and any request of the Commission for additional information (to be
included in the registration statement or the prospectus or otherwise) shall
have been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, in or affecting the financial position, business, prospects, or results
of operations of the Companies not contemplated by the Prospectus, which in the
opinion of the Representatives, would materially, adversely affect
14
the market for the Offered Units, or (ii) any event or development relating to
or involving any of the Companies or any officer or director of the General
Partner which makes any statement of a material fact made in the Prospectus
untrue or which, in the opinion of the Partnership and its counsel or the
Underwriters and their counsel, requires the making of any addition to or change
in the Prospectus in order to state a material fact required by the Act or any
other law to be stated therein or necessary in order to make the statements
therein not misleading, if amending or supplementing the Prospectus to reflect
such event or development would, in the opinion of the Representatives,
materially adversely affect the market for the Offered Units.
(c) You shall have received on the Closing Date an opinion of Xxxx X.
Xxxxxxx, General Counsel of IPL Energy (U.S.A.) Inc., dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, to the effect
that:
(i) There is no action, proceeding or investigation pending or,
to the best of such counsel's knowledge after due inquiry, threatened
against any of the Companies or the LPL Partnership which in such
counsel's judgment could reasonably be expected to have a material
adverse effect upon the limited partners of the Partnership or the
financial position, results of operations, business or prospects of
the General Partner or the Partnership, the Operating Partnership and
the LPL Partnership (taken as a whole).
(ii) None of the Companies or the LPL Partnership is in violation
of any term of (A) its partnership agreement or certificate of
incorporation or by-laws, as the case may be, (B) any other material
agreement or instrument to which it is a party or by which it or any
of its properties is bound, or (C) to the best of such counsel's
knowledge after due inquiry, any applicable order, judgment or decree
of any court, arbitrator or governmental authority to which any of the
Companies or the LPL Partnership is a named party, which violations,
in the judgment of such counsel, could reasonably be expected to have
a material adverse effect upon the limited partners of the Partnership
or the financial position, results of operations, business or
prospects of the General Partner or the Partnership, the Operating
Partnership and the LPL Partnership (taken as a whole).
(iii) The Companies have obtained all consents, approvals,
authorizations, orders, registrations or qualifications of or with any
governmental agency or other governmental instrumentality required
under applicable laws, ordinances, administrative or governmental
rules or regulations in order to undertake and consummate SEP II (as
defined in the Prepricing Prospectus), except such consents,
approvals, authorizations, orders, registrations or qualifications (A)
which are not yet required to be obtained, (B) which are of a routine
or administrative nature expected in the reasonable judgment of such
counsel to be obtained in the ordinary course of business or (C) which
if not obtained, would not, individually or in the aggregate, have a
material adverse effect upon the
15
financial position, results of operations, business or prospects of
the General Partner or the Partnership and the Operating Partnership
(taken as a whole).
(d) You shall have received on the Closing Date an opinion of Xxxxxxx
& Xxxxx L.L.P., counsel for the Companies, dated the Closing Date and addressed
to you, as Representatives of the several Underwriters, to the effect that:
(i) Each of the Partnership, the Operating Partnership and the
LPL 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 Prospectus and, with respect to the Partnership, also to act as general
partner of the LPL Partnership.
(ii) 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, to act as a general partner of
the Partnership and the Operating Partnership and to act as limited partner
of the LPL Partnership, in each case as described in the Prospectus, and is
duly qualified to do business and is in good standing under the laws of the
States of Illinois, Indiana, Michigan, Minnesota, New York, North Dakota
and Wisconsin and, to the knowledge of such counsel (after due inquiry),
such jurisdictions are the only jurisdictions within the United States in
which the Operating Partnership owns or leases property, or conducts any
business, so as to require the General Partner to qualify to conduct
business as a foreign corporation and in which the failure to so qualify
would be likely in the reasonable judgment of such counsel to have a
material adverse effect upon the financial position, results of operations,
business or prospects of the General Partner or the Partnership and the
Operating Partnership (taken as a whole) or the LPL Partnership or would be
likely in the reasonable judgment of such counsel to subject the limited
partners of the Partnership to any material liability or disability.
Interprovincial Pipe Line Inc. ("IPL") is the record owner of all of the
issued and outstanding shares of capital stock of the General Partner.
(iii) To the knowledge of such counsel (after due inquiry),
Wisconsin and Minnesota are the only jurisdictions within the United States
in which the Partnership or the LPL Partnership own or lease property or
conduct any business so as to require qualification or registration to
conduct business as a foreign limited partnership, and in which the failure
so to qualify or register as a foreign limited partnership would be likely
in the reasonable judgment of such counsel to subject the Partnership or
the LPL Partnership to any liability or disability which is material to the
financial position, results of operations, business or prospects of the
Partnership and the Operating Partnership (taken as a whole) or the LPL
16
Partnership or would be likely in the reasonable judgment of such counsel
to subject the limited partners of the Partnership to any material
liability or disability. The Operating Partnership has been qualified or
registered as a foreign limited partnership to conduct business in the
States of Illinois, Indiana, Michigan, Minnesota, New York, North Dakota
and Wisconsin and, to the knowledge of such counsel (after due inquiry),
such jurisdictions are the only jurisdictions in which the Operating
Partnership owns or leases property, or conducts any business, so as to
require qualification or registration to conduct business as a foreign
limited partnership and in which the failure to so qualify or register
would be likely in the reasonable judgment of such counsel to have a
material adverse effect upon the financial position, results of operations,
business or prospects of the Partnership and the Operating Partnership
(taken as a whole) or would be likely in the reasonable judgment of such
counsel to subject the limited partners of the Partnership to any material
liability or disability.
(iv) The authorized and outstanding partnership interests of the
Partnership are as set forth under the caption "Partnership Structure" in
the Prospectus; and, insofar as such descriptions relate to legal matters
or descriptions of provisions of the governing instruments, each of the
Units and the Partnership Agreement conforms in all material respects to
the descriptions thereof in the Prospectus.
(v) The General Partner is the sole general partner of each of
the Partnership and the Operating Partnership and is the sole limited
partner of the LPL Partnership. The General Partner owns of record a
general partner interest in the Partnership of 1.0%, and, prior to the
consummation of the issuance and sale of the Firm Units hereunder, owns of
record a limited partner interest in the Partnership (represented by
3,912,750 Class B Common Units) of approximately 16.1%, a general partner
interest in the Operating Partnership of 1.0101% and a limited partner
interest in the LPL Partnership of 99%, and, upon consummation of the
issuance and sale of the Firm Units hereunder, will own of record, a
limited partner interest in the Partnership (represented by 3,912,750 Class
B Common Units) of approximately 14.8%. The Partnership is the sole
general partner of the LPL Partnership and owns of record a general partner
interest in the LPL Partnership of 1.0%. The Partnership is the sole
limited partner of the Operating Partnership and owns of record a limited
partner interest in the Operating Partnership of 98.9899%. The general
partner interest and the Units in the Partnership are authorized by the
Partnership Agreement; the general partner interest and the limited partner
interest in the Operating Partnership are authorized by the Amended and
Restated Agreement of Limited Partnership of the Operating Partnership (the
"Operating Partnership Agreement"); the general partner interest and the
limited partner interest in the LPL Partnership are authorized by the
Agreement of Limited Partnership of the LPL Partnership (the "LPL
Partnership
17
Agreement"); and (A) each of such general partner interests and limited
partner interests and (B) each Unit outstanding on the date of the
Prospectus and the limited partnership interests represented thereby, is
validly issued and fully paid (with respect to such general partner
interests, only to the extent required at such time) and, with respect to
such limited partner interests and Units, non-assessable (except as such
non-assessibility may be affected by matters described in the Form 8-A)
and, with respect to the interests described in clause (A), is owned of
record by the party indicated in the Prospectus, in each case free and
clear of any liens, encumbrances, security interests, charges or claims of
record (1) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the General Partner, the
Partnership or the Operating Partnership as debtor is on file in the office
of the Secretary of State of the State of Delaware or (2) otherwise known
(based solely upon its participation as counsel in matters relating to the
offering of the Offered Units and without having conducted an independent
investigation) to such counsel, other than those created by or arising
under the Delaware Act.
(vi) The Offered Units to be issued and sold to the Underwriters
by the Partnership hereunder have been duly and validly authorized and
executed by the Partnership and, when issued and delivered to the
Underwriters against payment therefor in accordance with the terms hereof,
will be validly issued, fully paid and non-assessable (except as such non-
assessibility may be affected by the matters described in the Form 8-A),
and free of any preemptive or similar rights (except for the required
Capital Contributions to the Partnership to be made by the General Partner
pursuant to Section 4.4(c)(ii) of the Partnership Agreement) that entitle
or will entitle any person to acquire any partnership interest in the
Partnership, upon the issuance thereof by the Partnership, arising under
the Partnership Agreement or, to the knowledge of such counsel without any
independent investigation, any other agreement to which the Partnership is
a party or by which it is bound, and the Underwriters will acquire the
Offered Units free and clear of any liens, encumbrances, security
interests, charges or claims of record (A) in respect of which a financing
statement under the Uniform Commercial Code of the State of Delaware naming
the General Partner, the Partnership or the Operating Partnership is on
file in the office of the Secretary of State of the State of Delaware or
(B) otherwise known (based solely upon its participation as counsel in
matters relating to the offering of the Offered Units and without having
conducted an independent investigation) to such counsel, except as created
by this Agreement or by the Underwriters or any person who acquires an
interest in the Offered Units through the Underwriters or as provided by
the Delaware Act.
(vii) The Registration Statement and all post-effective
amendments thereto, if any, have become effective under the Act and, to the
knowledge of such counsel, no stop order suspending the effectiveness of
the Registration Statement
18
has been issued and no proceedings for that purpose have been instituted or
threatened by the Commission; and any required filing of the Prospectus
pursuant to Rule 424(b) has been made in accordance with Rule 424(b).
(viii) Each of the Companies has the partnership or corporate
power and authority, as the case may be, to enter into this Agreement and,
in the case of the Partnership, to issue, sell and deliver the Offered
Units to the Underwriters as provided herein.
(ix) This Agreement has been duly authorized, executed and
delivered by each of the Companies and constitutes the valid and
legally binding agreement of each of the Companies, enforceable
against each of the Companies in accordance with its terms, subject to
the qualifications that (A) the enforceability of such document may be
limited by bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights
generally, (B) the enforceability of such document may be limited by
public policy and the judicial imposition of an implied covenant of
good faith and fair dealing, (C) the enforceability of equitable
rights and remedies provided for in such document is subject to
equitable defenses and judicial discretion, and the enforceability of
such document may be limited by general equitable principles and (D)
the enforceability of the indemnity and contribution provisions of
such document may be limited by federal and state securities laws.
(x) 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 the LPL Partnership or any agreement, indenture, lease or
other instrument to which any of the Companies or the LPL Partnership is a
party or by which any of them or any of their respective properties is
bound that is an exhibit to the Registration Statement or to any
Incorporated Document, 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 the LPL
Partnership is a named party and which has been specifically identified to
such counsel in a certificate signed by an authorized officer of the
Partnership, 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) or the LPL Partnership; except for the
rights of the General Partner and its Affiliates (as such term is defined
in the Partnership Agreement and used in
19
Section 6.14 of the Partnership Agreement), to such counsel's knowledge,
neither the filing of the Registration Statement nor the offering or sale
of the Offered Units as contemplated by this Agreement gives rise to any
rights for or relating to the registration of any interests in or
securities of the Partnership, the Operating Partnership or the LPL
Partnership.
(xi) No consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency, or official is required on the
part of any of the Companies (except as have been obtained under the Act or
such as may be required under state securities or Blue Sky laws governing
the purchase and distribution of the Offered Units) for the valid issuance
and sale of the Offered Units to the Underwriters as contemplated by this
Agreement.
(xii) The Registration Statement and the Prospectus and any
supplements or amendments thereto (except for the financial statements and
the notes thereto and the schedules and other financial and statistical
data included therein, as to which such counsel need not express any
opinion) comply as to form in all material respects with the requirements
of the Act; and each of the Incorporated Documents (except for the
financial statements and the notes thereto and the schedules and other
financial and statistical data included therein, as to which counsel need
not express any opinion) complies as to form in all material respects with
the Exchange Act.
(xiii) To the knowledge of such counsel, (A) other than as
described or contemplated in the Prospectus (or any supplement thereto),
there are no legal or governmental proceedings pending or threatened
against any of the Companies, or to which any of the Companies, or any of
their property, is subject, which are required to be described in the
Registration Statement or Prospectus (or any amendment or supplement
thereto) and (B) there are no agreements, contracts, indentures, leases or
other instruments, that are required to be described in the Registration
Statement or the Prospectus (or any amendment or supplement thereto) or to
be filed as an exhibit to the Registration Statement or any Incorporated
Document that are not described or filed as required, as the case may be.
(xiv) The Partnership Agreement has been duly authorized,
executed and delivered by the General Partner and is a valid and legally
binding agreement of the General Partner, enforceable against the General
Partner in accordance with its terms, subject to the qualifications that
(A) the enforceability of such document may be limited by bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights generally, (B) the enforceability of such
document may be limited by public policy, applicable law relating to
fiduciary duties and the judicial imposition of an implied covenant of
20
good faith and fair dealing, (C) the enforceability of equitable rights and
remedies provided for in such document is subject to equitable defenses and
judicial discretion, and the enforceability of such document may be limited
by general equitable principles and (D) the enforceability of the indemnity
and contribution provisions of such document may be limited by federal and
state securities laws; the Operating Partnership Agreement has been duly
authorized, executed and delivered by the General Partner and the
Partnership and is a valid and legally binding agreement of the General
Partner and the Partnership, enforceable against the General Partner and
the Partnership in accordance with its terms, subject to the qualifications
that (A) the enforceability of such document may be limited by bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights generally, (B) the enforceability of such
document may be limited by public policy, applicable law relating to
fiduciary duties and the judicial imposition of an implied covenant of good
faith and fair dealing, (C) the enforceability of equitable rights and
remedies provided for in such document is subject to equitable defenses and
judicial discretion, and the enforceability of such document may be limited
by general equitable principles and (D) the enforceability of the indemnity
and contribution provisions of such document may be limited by federal and
state securities laws; the LPL Partnership Agreement has been duly
authorized, executed and delivered by the Partnership and the General
Partner and is a valid and legally binding agreement of the Partnership and
the General Partner, enforceable against the Partnership and the General
Partner in accordance with its terms, subject to the qualifications that
(A) the enforceability of such document may be limited by bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights generally, (B) the enforceability of such
document may be limited by public policy, applicable law relating to
fiduciary duties and the judicial imposition of any implied covenant of
good faith and fair dealing, (C) the enforceability of equitable rights and
remedies provided for in such document is subject to equitable defenses and
judicial discretion, and the enforceability of such document may be limited
by general equitable principles and (D) the enforceability of the indemnity
and contribution provisions of such document may be limited by federal and
state securities laws.
(xv) None of the Companies or the LPL Partnership is an
"Investment Company" as that term is defined in the Investment Company Act
or is subject to regulation under the Investment Company Act.
(xvi) None of the Companies or the LPL Partnership is a
"public utility company" or a "holding company" as such terms are defined
in the 1935 Act.
21
(xvii) The opinion of Xxxxxxx & Xxxxx L.L.P. that was filed as
Exhibit 8.1 to the Registration Statement is confirmed and the
Underwriters may rely upon such opinion as if it were addressed to
them.
Such counsel shall also state that although such counsel has not undertaken,
except as otherwise indicated in their opinion, to determine independently, and
does not assume any responsibility for, the accuracy or completeness of the
statements in the Registration Statement, such counsel has participated in the
preparation of the Registration Statement and the Prospectus, including review
and discussion of the contents thereof (including review and discussion of the
contents of all Incorporated Documents), and nothing has come to the attention
of such counsel that has caused them to believe that the Registration Statement
(including the Incorporated Documents) at the time the Registration Statement
became effective, or the Prospectus, as of its date and as of the Closing Date
or the Option Closing Date, as the case may be, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that any
amendment or supplement to the Prospectus, as of its respective date, and as of
the Closing Date or the Option Closing Date, as the case may be, contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no opinion with respect to the financial
statements and the notes thereto and the schedules and other financial and
statistical data and projected data included in the Registration Statement or
the Prospectus or any Incorporated Document). In addition, such counsel shall
state that for purposes of determining whether the fair market value of the
assets of the General Partner (excluding General Partner's interest in the
Partnership and in the Operating Partnership) exceeds the liabilities of the
General Partner by at least $35 million, such counsel has advised the General
Partner that any assets or liabilities reflected on a balance sheet prepared in
accordance with generally accepted accounting principles that merely represent
timing differences between generally accepted accounting principles and federal
income tax accounting principles should be excluded in the making of such
determination.
In rendering such opinions, such counsel may (1) rely in respect of factual
matters upon certificates of officers of the General Partner and upon
information obtained from public officials, upon opinions of other counsel
issued in connection with the offering of the Offered Units pursuant to the
Prospectus and other sources believed by such counsel to be responsible, (2)
assume that the certificates for the Offered Units conform to the specimens
thereof examined by them and have been duly countersigned by a transfer agent
and duly registered by a registrar of the Units and that the signatures on all
documents examined by such counsel are genuine, which assumptions they may state
they have not independently verified, (3) state that their opinion is limited to
federal laws, the Delaware Act, the Delaware General Corporation Law and New
York law, (4) state that they express no opinion with respect to state or local
taxes or tax statutes to which any of the Partnership, the limited partners of
the Partnership, the Operating Partnership, the General Partner or the LPL
Partnership may be subject and (5) state that their opinion is
22
furnished as counsel for the Companies and the LPL Partnership to you, as
representatives of the several Underwriters, and is solely for the benefit of
the several Underwriters.
(e) You shall have received on the Closing Date an opinion of Xxxxxxxx
& Xxxxxxxx, counsel for the Companies, dated the Closing Date and addressed to
you, as Representatives of the several Underwriters, to the effect that (i) none
of the Companies or the LPL Partnership is (A) a "subsidiary company" of a
"registered holding company," or of a "holding company" subject to regulation
under the 1935 Act or (B) is an "affiliate" of a "registered holding company,"
or of a "holding company"subject to regulation under the 1935 Act, or of a
"subsidiary company" of a "registered holding company," or of a "holding
company" subject to regulation under the 1935 Act, as such terms are defined in
the 1935 Act, and (ii) no consent, authorization, approval or filing is required
to be obtained or made under the 1935 Act in connection with the issuance and
sale of the Offered Units by the Partnership as contemplated by the Prospectus.
(f) Each of (i) Sidley & Austin, with respect to the State of
Illinois, (ii) Xxxxxx & Xxxxxxxxx, with respect to the State of Indiana, (iii)
Butzel Long, with respect to the State of Michigan, (iv) Magie, Andresen, Hagg,
Paciotti, Butterworth & XxXxxxxx, P.A., with respect to the State of Minnesota,
(v) Phillips, Lytle, Xxxxxxxxx, Xxxxxx & Xxxxx, with respect to the State of New
York, (vi) Xxxxxx & Xxxxxx, with respect to the State of North Dakota and (vii)
XxXxxx, Xxxx & Xxxxxxx S.C., with respect to the State of Wisconsin, each of
which is acting as special local counsel for the Companies, shall have furnished
to you, as Representatives of the several Underwriters, its written opinion or
opinions, dated as of the applicable Closing Date in form and substance
satisfactory to you, to the effect that:
(i) The Partnership need not be qualified or registered as a
foreign limited partnership for the transaction of business under the laws
of such state.
(ii) [As to Wisconsin and Minnesota only] The Partnership has
been qualified or registered as a foreign limited partnership to conduct
business in such state.
(iii) The Operating Partnership has been duly qualified or
registered as a foreign limited partnership for the transaction of business
under the laws of such state.
(iv) Each of the Partnership and the Operating Partnership has
all requisite power and authority as a limited partnership under the laws
of such state to own or lease the portion of the assets, properties and
rights relating to the Lakehead System (as defined in the Prepricing
Prospectus) (collectively, the "Properties") located in such state and to
conduct its business in such state; and upon the consummation of the
offering of the Offered Units pursuant to the Prospectus, assuming that the
Partnership will not be liable under the laws of the
23
State of Delaware for the liabilities of the Operating Partnership and that
the Unitholders will not be liable under the laws of the State of Delaware
for the liabilities of the Partnership or the Operating Partnership, the
Partnership will not be liable under the laws of such state for the
liabilities of the Operating Partnership, and the Unitholders will not be
liable under the laws of such state for the liabilities of any of the
Companies, except in each case to the same extent as under the laws of the
State of Delaware or as otherwise described in the Prospectus.
(v) Neither the offer, sale or delivery of the Offered Units, the
execution, delivery or performance of this Agreement, compliance by the
Companies with the provisions hereof nor consummation by the Companies of
the transactions contemplated hereby will result in any violation of any
existing law, regulation, ruling (assuming compliance with all applicable
state securities and Blue Sky laws), judgment, injunction, order or decree
known to such counsel after reasonable inquiry, applicable to any of the
Companies or any of their respective properties.
(vi) No consent, approval, authorization, order, registration or
qualification of or with any governmental agency or instrumentality of such
state governing (A) oil pipelines generally or (B) the issuance of
securities by entities owning oil pipelines, or, to such counsel's
knowledge, based solely upon its participation as special counsel in
matters relating to the offering of the Offered Units pursuant to the
Prospectus and without in any manner having conducted an independent
investigation, any other governmental agency or instrumentality of such
state having jurisdiction over any of the Companies, as the case may be, or
any of their respective properties, is required for the issuance of the
Offered Units by the Partnership, except such consents, approvals,
authorizations, orders, registrations or qualifications (1) as have been
obtained, (2) as may be required under state securities or Blue Sky laws,
(3) which, if not obtained, would not, individually or in the aggregate,
have a material adverse effect upon the ability of the Partnership and the
Operating Partnership (taken as a whole) to conduct their business
substantially in accordance with the past practice of each, or (4) as set
forth or contemplated in the Prospectus.
(g) You shall have received on the Closing Date an opinion of Steptoe
& Xxxxxxx, special FERC counsel for the Companies, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, to the effect
that:
(i) No consent, approval, authorization, order, registration or
qualification of or with the FERC is required for the issuance of the
Offered Units, the offer and sale of the Offered Units by the
Partnership or the execution, delivery and performance of this
Agreement; and
24
(ii) To the knowledge of such counsel and without in any manner having
conducted an investigation, there are no material legal or
governmental proceedings pending or threatened against any of the
Companies by or before the FERC or on appeal from the FERC, except as
set forth in or contemplated by the Prospectus.
(h) You shall have received on the Closing Date an opinion of
Loomis, Ewert, Ederer, Parsley, Xxxxx & Gotting, special Michigan regulatory
counsel to the Companies, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that no consent,
approval, authorization, order, registration or qualification of or with the
Michigan Public Service Commission is required for the issuance and sale of the
Offered Units by the Partnership, except such consents, approvals,
authorizations, orders, registrations or qualifications as have been obtained.
(i) You shall have received on the Closing Date an opinion of XxXxxxxx
Xxxxxxxx, Canadian counsel to IPL, dated the Closing Date and addressed to you,
as Representatives of the several Underwriters, to the effect that:
(i) No consent, approval, authorization, order, registration or
qualification of or with, any governmental agency or other
governmental instrumentality of Canada or any province thereof having
jurisdiction over any of the Companies or IPL is required for the
issuance and sale of the Offered Units as contemplated by the
Prospectus.
(ii) To the best of such counsel's knowledge, there is no litigation
or governmental proceeding to which IPL is a party or to which its
properties are subject that is pending or threatened against it that,
if adversely determined, would have a material adverse effect upon the
financial position, results of operations, business or prospects of
any of the Companies.
(j) You shall have received on the Closing Date an opinion of Xxxxx &
Xxxxx, L.L.P., counsel for the Underwriters, dated the Closing Date, with
respect to the matters referred to in clauses (vi), (vii), (viii) and (xi) of
the foregoing paragraph (d) and such other related matters as you may request.
(k) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date from Price Waterhouse LLP, independent accountants, substantially
in the forms heretofore approved by you.
(l) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been taken or, to the knowledge of any of the Companies shall be threatened by
the Commission at or prior to the Closing Date; (ii) there shall not have been
any change in the capitalization of the Partnership nor
25
any material increase in the short-term or long-term debt of the Partnership
(other than in the ordinary course of business) from that set forth or
contemplated in the Registration Statement or the Prospectus (or any amendment
or supplement thereto); (iii) there shall not have been, since the respective
dates as of which information is given in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), except as may otherwise be
stated in the Registration Statement and Prospectus (or any amendment or
supplement thereto), any material adverse change in the financial position,
business, prospects, or results of operations of the General Partner or the
Partnership and the Operating Partnership (taken as a whole); (iv) none of the
Companies shall have any liabilities or obligations, direct or contingent
(whether or not in the ordinary course of business), that are material to the
General Partner or the Partnership and the Operating Partnership (taken as a
whole), other than those reflected in the Registration Statement or the
Prospectus (or any amendment or supplement thereto); and (v) all the
representations and warranties of the Companies contained in this Agreement
shall be true and correct in all material respects on and as of the date hereof
and on and as of the Closing Date as if made on and as of the Closing Date, and
you, as Representatives of the several Underwriters, shall have received a
certificate, dated the Closing Date and signed by the chief executive officer
and the chief financial officer of the General Partner (or such other officers
as are acceptable to you), to the effect set forth in this Section 8(l) and in
Section 8(m) hereof.
(m) None of the Companies shall have failed at or prior to the Closing
Date to have performed or complied with any of its agreements herein contained
and required to be performed or complied with by it hereunder at or prior to the
Closing Date.
(n) Prior to commencement of the offering of the Offered Units, such
Units shall have been listed, subject to notice of issuance, on the New York
Stock Exchange.
(o) Each of the Partnership and the General Partner shall have
furnished or caused to be furnished to you, as Representatives of the several
Underwriters, such further certificates and documents as you shall have
reasonably requested that are customary in closing transactions of the nature
contemplated by this Agreement.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and your counsel.
Any certificate or document signed by any officer of the General Partner,
whether on behalf of itself or the Partnership or the Operating Partnership, and
delivered to you, as Representatives of the Underwriters, or to counsel for the
Underwriters, shall be deemed a representation and warranty by the Companies to
each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase Additional Units
hereunder are subject to the satisfaction on and as of any Option Closing Date
of the conditions set forth in this Section 8, except that, if any Option
Closing Date is other than the Closing Date, the certificates,
26
opinions and letters referred to in paragraphs (c) through (o) shall be dated
the Option Closing Date in question and the opinions called for by paragraphs
(c), (d), (e), (f), (g), (h), (i) and (j) shall be revised to reflect the sale
of Additional Units.
9. Expenses. The Companies agree to pay the following costs and expenses
--------
and all other costs and expenses incident to the performance by them of their
obligations hereunder: (i) the preparation, printing or reproduction, and filing
with the Commission of the registration statement (including financial
statements and exhibits thereto), each Prepricing Prospectus, the Prospectus,
each amendment or supplement to any of them and this Agreement; (ii) the
printing (or reproduction) and delivery (including postage, air freight charges
and charges for counting and packaging) of such copies of the registration
statement, each Prepricing Prospectus, the Prospectus, the Incorporated
Documents, and all amendments or supplements to any of them, as may be
reasonably requested for use in connection with the offering and sale of the
Offered Units, (iii) the preparation, printing, authentication, issuance and
delivery of the Offered Units; (iv) the printing (or reproduction) and delivery
of this Agreement, the preliminary and supplemental Blue Sky Memoranda and all
other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Offered Units; (v) the listing of the
Offered Units on the New York Stock Exchange; (vi) the registration or
qualification of the Offered Units for offer and sale under the securities or
Blue Sky laws of the several states as provided in Section 5(g) hereof
(including the reasonable fees, expenses and disbursements of counsel for the
Underwriters relating to the preparation, printing or reproduction, and delivery
of the preliminary and supplemental Blue Sky Memoranda and such registration and
qualification); (vii) the filing fees and the fees and expenses of counsel for
the Underwriters in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.; (viii) the transportation and
lodging expenses incurred by or on behalf of representatives of the Companies in
connection with presentations to prospective purchasers of the Offered Units;
(ix) the fees and expenses of the accountants for the Companies; and (x) the
fees and expenses of counsel (including local and special counsel) for the
Companies.
10. Effective Date of Agreement. This Agreement shall become effective:
---------------------------
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
registration statement or a post-effective amendment thereto to be declared
effective before the offering of the Offered Units may commence, when
notification of the effectiveness of the registration statement or such post-
effective amendment has been given by the Commission. Until such time as this
Agreement shall have become effective, it may be terminated by the General
Partner, on behalf of the Companies, by notifying you, or by you, as
Representatives of the several Underwriters, by notifying the General Partner,
on behalf of the Companies.
If any one or more of the Underwriters shall fail or refuse to purchase
Offered Units which it or they are obligated to purchase hereunder on the
Closing Date, and the aggregate number of Units which such defaulting
Underwriter or Underwriters are obligated but fail or refuse to purchase is not
more than one-tenth of the aggregate number of the Offered Units which the
Underwriters are
27
obligated to purchase on the Closing Date, each non-defaulting Underwriter shall
be obligated, severally, in the proportion which the number of Firm Units set
forth opposite its name in Schedule I hereto bears to the aggregate number of
Firm Units set forth opposite the names of all non-defaulting Underwriters or in
such other proportion as you may specify in accordance with Section 20 of the
Master Agreement Among Underwriters of Xxxxx Xxxxxx Inc., to purchase the
Offered Units which such defaulting Underwriter or Underwriters are obligated,
but fail or refuse, to purchase. If any one or more of the Underwriters shall
fail or refuse to purchase Offered Units which it or they are obligated to
purchase on the Closing Date and the aggregate number of Offered Units with
respect to which such default occurs is more than one-tenth of the aggregate
number of Offered Units which the Underwriters are obligated to purchase on the
Closing Date and arrangements satisfactory to you and the Partnership for the
purchase of such Offered Units by one or more non-defaulting Underwriters or
other party or parties approved by you and the Partnership are not made within
36 hours after such default, this Agreement will terminate without liability on
the part of any party hereto (other than the defaulting Underwriter). In any
such case which does not result in termination of this Agreement, either you or
the Partnership shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in
the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. If any one or more of the Underwriters shall fail
or refuse to purchase Additional Units which it or they are obligated to
purchase hereunder on the Option Closing Date, each non-defaulting Underwriter
shall be obligated, severally, in the proportion which the number of Firm Units
set forth opposite its name in Schedule I hereto bears to the aggregate number
of Firm Units set forth opposite the names of all non-defaulting Underwriters or
in such other proportion as you may specify in accordance with Section 20 of the
Master Agreement Among Underwriters of Xxxxx Xxxxxx Inc., to purchase the
Additional Units which such defaulting Underwriter or Underwriters are
obligated, but fail or refuse, to purchase. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any such default of any such Underwriter under this Agreement. The term
"Underwriter" as used in this Agreement includes, for all purposes of this
Agreement, any party not listed in Schedule I hereto who, with your approval and
the approval of the Partnership, purchases Offered Units which a defaulting
Underwriter is obligated, but fails or refuses, to purchase.
Any notice under this Section 10 may be made by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be subject to
------------------------
termination in your absolute discretion, without liability on the part of any
Underwriter to the Companies by notice to the General Partner, on behalf of the
Companies, if prior to the Closing Date or any Option Closing Date (if different
from the Closing Date and then only as to the Additional Units), as the case may
be, (i) trading in the Units shall be suspended or subject to any restriction or
limitation not in effect on the date of this Agreement; (ii) trading in
securities generally on the New York Stock Exchange, the American Stock Exchange
or the Nasdaq National Market shall have been suspended or materially limited,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either federal or state authorities, or (iv) there shall
have
28
occurred any outbreak or escalation of hostilities or other international or
domestic calamity, crisis or change in political, financial or economic
conditions, the effect of which on the financial markets of the United States is
such as to make it, in your judgment, impracticable or inadvisable to commence
or continue the offering of the Offered Units on the terms set forth on the
cover page of the Prospectus or to enforce contracts for the resale of the
Offered Units by the Underwriters. Notice of such termination shall be promptly
given to the General Partner, on behalf of the Companies, by telegram, telecopy
or telephone and shall be subsequently confirmed by letter.
12. Information Furnished by the Underwriters. The statements set forth
-----------------------------------------
in the last paragraph on the cover page, the stabilization legend on the inside
cover page, and the statements in the first, third and seventh paragraphs and in
the last sentence of the sixth paragraph under the caption "Underwriting" in any
Prepricing Prospectus and in the Prospectus, constitute the only information
furnished by or on behalf of the Underwriters as such information is referred to
in Sections 6(a), 6(b) and 7 hereof.
13. Miscellaneous. Except as otherwise provided in Sections 5, 10 and 11
-------------
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to any of the Companies, at the office of
the General Partner, at Xxxxx 000, Xxxx Xxxxxxxx Xxxxx, 00 Xxxx Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxx 00000, Attention: Xxxx X. Xxxxxxx, Secretary; or (ii) if to
you, as Representatives of the several Underwriters, care of Xxxxx Xxxxxx Inc.,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment
Banking Division.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Companies, the directors and officers of the General Partner,
and the other controlling persons referred to in Section 7 hereof and their
respective successors and assigns, to the extent provided herein, and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" nor the term "successors and assigns" as used in
this Agreement shall include a purchaser from any Underwriter of any of the
Offered Units in his status as such purchaser.
14. Applicable Law; Counterparts. This Agreement shall be governed by and
----------------------------
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
15. NASD Rules of Fair Practice. As the National Association of
---------------------------
Securities Dealers, Inc. ("NASD") views the Offered Units as interests in a
direct participation program, each
29
Underwriter agrees that it will offer the Offered Units in compliance with Rule
2810 of the NASD's Conduct Rules.
30
Please confirm that the foregoing correctly sets forth the agreement among
the Partnership, the Operating Partnership, the General Partner and the several
Underwriters.
Very truly yours,
LAKEHEAD PIPE LINE PARTNERS, L.P.
By: Lakehead Pipe Line Company, Inc.
General Partner
By: ____________________________________
Name: __________________________________
Title: _________________________________
LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP
By: Lakehead Pipe Line Company, Inc.
General Partner
By: ___________________________________
Name: _________________________________
Title: ________________________________
LAKEHEAD PIPE LINE COMPANY, INC.
By: ___________________________________
Name: _________________________________
Title: ________________________________
31
Confirmed as of the date first above
mentioned on behalf of themselves and
the other several Underwriters named in
Schedule I hereto.
XXXXX XXXXXX INC.
XXXXXXX, XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
As Representatives of the Several Underwriters
By: XXXXX XXXXXX INC.
By: ___________________________________
Managing Director
32
SCHEDULE I
LAKEHEAD PIPE LINE PARTNERS, L.P.
Number of
Underwriter Firm Units
----------- ----------
Xxxxx Xxxxxx Inc......................................
Xxxxxxx, Sachs & Co...................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated....
==========
Total............................................ 2,200,000
33
