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EXHIBIT 1.1
[Conformed Copy]
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP
(a Delaware limited partnership)
$100,000,000 7% Senior Notes due 2018
$100,000,000 7 1/8% Senior Notes due 2028
UNDERWRITING AGREEMENT
September 28, 1998
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Chase Securities Inc.
ABN AMRO Incorporated
CIBC Xxxxxxxxxxx Corp.
Citicorp Securities, Inc.
Credit Suisse First Boston Corporation
Xxxxxxx Xxxxx Securities, Inc.
x/x XXXXXXX XXXXX & XX.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Lakehead Pipe Line Company, Limited Partnership, a Delaware limited
partnership (the "Operating Partnership"), confirms its agreement with Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx
Xxxxx") and each of the other Underwriters named in Schedule A hereto
(collectively, the "Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), with respect to the
issue and sale by the Operating Partnership and the purchase by the
Underwriters, acting severally and not jointly, of the respective principal
amounts set forth in said Schedule A of $100,000,000 aggregate principal amount
of the Operating Partnership's 7% Senior Notes due 2018 (the "2018 Notes") and
$100,000,000 aggregate principal amount of the Operating Partnership's 7 1/8%
Senior Notes due 2028 (the "2028 Notes" and together with the 2018 Notes, the
"Securities"). The Securities are to be issued pursuant to an indenture dated as
of September 15, 1998, between the Operating Partnership and The Chase Manhattan
Bank, as trustee (the "Trustee"), as supplemented by the First Supplemental
Indenture dated as of September 15, 1998 and by the Second Supplemental
Indenture dated as of September 15, 1998 (as so supplemented, the "Indenture").
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Each of the Operating Partnership, Lakehead Pipe Line Partners, L.P., a
Delaware limited partnership (the "Partnership"), and Lakehead Pipe Line
Company, Inc., a Delaware corporation (both in its capacity as general partner
of the Operating Partnership and in its individual capacity, the "General
Partner"), wishes to confirm as follows its agreement with the Underwriters in
connection with the several purchases of the Securities by the Underwriters. The
Partnership, the Operating Partnership and the General Partner are sometimes
collectively referred to herein as the "Companies."
The Companies understand that the Underwriters propose to make a public
offering of the Securities as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered.
1. Registration Statement and Prospectus. The Operating Partnership
has prepared 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 (Registration
No. 333-59597) under the Act, including a prospectus subject to completion
relating to certain debt securities of the Operating Partnership, including the
Securities. Such registration statement (including all financial schedules and
exhibits), as amended at the time it becomes effective, or, if such registration
statement became effective prior to the execution of this Agreement, as
supplemented or amended prior to the execution of this Agreement is herein
called the "Registration Statement." If it is contemplated, at the time this
Agreement is executed, that a post-effective amendment to such registration
statement will be filed and must be declared effective before the offering of
the Securities may commence, the term "Registration Statement" as used in this
Agreement means such 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 Securities may commence, the term "Registration
Statement" as used in this Agreement includes such registration statement. The
term "Basic Prospectus" as used in this Agreement means the prospectus contained
in the Registration Statement at the time that the Registration Statement was
declared effective or in the form in which it has been most recently filed with
the Commission on or prior to the date of this Agreement. "Preliminary
Prospectus" shall mean any preliminary prospectus supplement to the Basic
Prospectus, together with the Basic Prospectus, which describes the Securities
and the offering thereof, is filed pursuant to Rule 424(b) under the Act ("Rule
424(b)") and is used prior to the filing of the Final Prospectus. "Final
Prospectus" shall mean the prospectus supplement relating to the Securities and
the offering thereof that is first filed pursuant to Rule 424(b) after the date
and time this Agreement is executed and delivered by the parties hereto,
together with the Basic Prospectus.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, the Basic Prospectus, the Preliminary Prospectus or the
Final Prospectus (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other
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information which is incorporated by reference in the Registration Statement,
the Basic Prospectus, the Preliminary Prospectus or the Final Prospectus, as the
case may be; any reference in this Agreement to the Registration Statement, the
Basic Prospectus, the Preliminary Prospectus or the Final 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 Basic Prospectus, the Preliminary Prospectus or the
Final Prospectus, as the case may be; and any reference to any amendment or
supplement to the Registration Statement, the Basic Prospectus, the Preliminary
Prospectus or the Final 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 Basic Prospectus, the
Preliminary Prospectus or the Final Prospectus or any amendment or supplement
thereto.
2. Agreements to Sell and Purchase. The Operating Partnership hereby
agrees, upon 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 Operating Partnership, at the
price set forth in Schedule B hereto, the aggregate amount of Securities set
forth opposite the name of such Underwriter in Schedule A hereto, plus any
additional principal amount of Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
3. Terms of Public Offering. The Operating Partnership has been
advised by the Underwriters that the Underwriters propose to make a public
offering of their respective portions of the Securities as soon after the
Registration Statement and this Agreement have become effective as in the
judgment of the Underwriters is advisable and initially to offer the Securities
upon the terms set forth in the Final Prospectus.
4. Delivery of the Securities and Payment Therefor. The Securities
to be purchased hereunder will be represented by one or more definitive global
certificates in book-entry form which will be deposited by or on behalf of the
Operating Partnership with The Depository Trust Company ("DTC") or its
designated custodian.
Delivery to the Underwriters of the Securities, against payment of the
purchase price therefor in immediately available funds, shall be made by causing
DTC to credit the Securities to the account or accounts designated by Xxxxxxx
Xxxxx on behalf of the Underwriters at DTC. The time and date of such delivery
shall be 10:00 A.M., New York City time, on October 1, 1998 (such time and date
of payment and delivery being herein called (the "Closing Time"). The other
documents to be delivered at the Closing Time by or on behalf of the parties
hereto shall be delivered at such time and date at the offices of Xxxxx & Xxxxx,
L.L.P., 000 Xxxxxxxxx, Xxxxxxx, Xxxxx 00000. The place of closing for the
Securities and the Closing Time may be varied by
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agreement between the Underwriters and the Operating Partnership. Xxxxxxx Xxxxx
may (but shall not be obligated to) make payment of the purchase price for the
Securities to be purchased by any Underwriter whose funds have not been received
by the Closing Time, but such payment shall not relieve such Underwriter from
its obligations hereunder.
The global certificates representing the Securities to be delivered to
the Underwriters shall be made available to the Underwriters at the office of
DTC or its custodian for inspection not later than 9:30 A.M., New York City
time, on the business day next preceding the Closing Time.
5. Agreements of the Companies. Each of the Companies agrees with
the 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 Securities may
commence, the Operating 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 the Underwriters and counsel for
the Underwriters promptly and, if requested by the Underwriters, will confirm
such advice in writing, when the Registration Statement or such post-effective
amendment has become effective.
(b) The Operating Partnership and the General Partner will advise
the Underwriters and counsel for the Underwriters promptly and, if requested by
the Underwriters, will confirm such advice in writing: (i) of any request by the
Commission for amendment of or a supplement to the Registration Statement, the
Basic Prospectus, the Preliminary Prospectus or the Final 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 Securities 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, the Preliminary Prospectus or the Final
Prospectus (as then amended or supplemented) untrue or which requires the making
of any additions to or changes in the Registration Statement, the Preliminary
Prospectus or the Final 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 Preliminary Prospectus or the Final 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 Operating Partnership and the General Partner will
make every reasonable effort to obtain the withdrawal of such order at the
earliest possible time.
(c) The Operating Partnership and the General Partner will
furnish to the Underwriters, at the Underwriters' request and without charge,
(i) three signed copies and five
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conformed 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 the Underwriters may request, (iii) such number of
copies of the Incorporated Documents, without exhibits, as the Underwriters may
request, and (iv) such number of copies of the exhibits to the Incorporated
Documents as the Underwriters may request.
(d) Neither the Operating Partnership nor the General Partner
will file any amendment to the Registration Statement or make any amendment or
supplement to the Preliminary Prospectus or the Final Prospectus or, prior to
the end of the period of time referred to in the second sentence in paragraph
(f) below, file any document which, upon filing becomes an Incorporated
Document, of which the Underwriters and counsel for the Underwriters shall not
previously have been advised or to which, after the Underwriters and counsel for
the Underwriters shall have received a copy of the document proposed to be
filed, the Underwriters shall reasonably object; provided that the Underwriters'
consent shall not be unreasonably withheld or delayed.
(e) Prior to the execution and delivery of this Agreement, the
Operating Partnership and the General Partner have delivered to the
Underwriters, without charge, in such quantities as the Underwriters have
requested, copies of the Preliminary Prospectus. The Operating 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
Securities are offered by the several Underwriters and by dealers, prior to the
date of the Final Prospectus, of the Preliminary Prospectus so furnished by the
Operating Partnership and the General Partner.
(f) The Operating Partnership will cause the Final Prospectus to
be filed pursuant to, and in compliance with, Rule 424(b). 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 Operating Partnership and the General Partner
will expeditiously deliver to each Underwriter and each dealer, without charge,
as many copies of the Final Prospectus (and of any amendment or supplement
thereto) as the Underwriters may reasonably request. The Operating Partnership
and the General Partner consent to the use of the Preliminary Prospectus or the
Final 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 Securities are offered by the several Underwriters
and by all dealers to whom Securities may be sold, both in connection with the
offering and sale of the Securities and for such period of time thereafter as
the Preliminary Prospectus or the Final Prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer. If during such
period of time any event shall occur that in the judgment of the Operating
Partnership or the General Partner or in the opinion of counsel for the
Underwriters is required to be set forth in the Preliminary Prospectus or the
Final Prospectus (as then amended or supplemented) or should be
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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 Preliminary Prospectus or the Final 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
Operating 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 Operating Partnership or the General
Partner and the several Underwriters agree that the Preliminary Prospectus or
the Final Prospectus should be amended or supplemented, the Operating
Partnership and the General Partner, if requested by the Underwriters, will
promptly issue a press release announcing or disclosing the matters to be
covered by the proposed amendment or supplement.
(g) The Operating Partnership and the General Partner will
cooperate with the Underwriters and with counsel for the Underwriters in
connection with the registration or qualification of the Securities for offering
and sale by the several Underwriters and by dealers under the securities or Blue
Sky laws of such jurisdictions as the Underwriters 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 Operating 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 Securities, in any jurisdiction where it is not now so
subject.
(h) The Operating Partnership and the General Partner will make
generally available to security holders of the Operating Partnership a
consolidated earnings statement, which need not be audited, covering a 12-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) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than pursuant to
Section 10 hereof or pursuant to clause (ii), (iii), (iv) or (v) of 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 Operating
Partnership and the General Partner, jointly and severally, agree 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.
(j) The Operating Partnership will apply the net proceeds from
the sale of the Securities substantially in accordance with the description set
forth in the Final Prospectus.
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(k) During a period of 30 days from the date of the Final
Prospectus, the Companies will not, without the prior written consent of Xxxxxxx
Xxxxx, directly or indirectly, issue, sell, offer or contract to sell, grant any
option for the sale of, or otherwise transfer or dispose of, any debt securities
of the Operating Partnership or of the Partnership; provided, however, that this
limitation shall not apply to (i) bank borrowings or (ii) borrowings from the
General Partner or any of its affiliates.
(l) The Partnership, during the period when the Final Prospectus
is required to be delivered under the Act, will file all documents required to
be filed with the Commission pursuant to the Exchange Act within the time
periods required by the Exchange Act.
6. Representations and Warranties of the Companies. Each of the
Companies represents and warrants to each Underwriter that:
(a) The Basic Prospectus included as part of the Registration
Statement as originally filed or as part of any amendment or supplement thereto,
and the Preliminary Prospectus filed pursuant to Rule 424(b), complied when so
filed in all material respects with the provisions of the Act and did not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that this representation and warranty does not apply to statements in or
omissions from the Basic Prospectus or the Preliminary Prospectus made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Operating 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
Commission has not issued any order preventing or suspending the use of the
Basic Prospectus or the Preliminary Prospectus.
(b) The Operating Partnership and the offering of the Securities
contemplated by this Agreement meet the requirements for using Form S-3 under
the Act. The Registration Statement in the form in which it became or becomes
effective and also in such form as it may be when any post-effective amendment
thereto shall become effective and the Final Prospectus and any supplement or
amendment thereto when filed with the Commission under Rule 424(b) and at the
Closing Time, complied or will comply in all material respects with the
provisions of the Act and, with respect to the Registration Statement, the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (the "1939 Act"), and will not at any such times contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and the statements made or to be made in such documents that are covered by Rule
175(b) under the Act were made or will be made with a reasonable basis and in
good faith, except that this representation and warranty does not apply to
statements in or omissions from the Registration Statement or the Final
Prospectus made in reliance upon and in conformity with information relating to
any Underwriter
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furnished to the Operating 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 as of June 30, 1998 was
as set forth in the Final Prospectus under "Capitalization." The capitalization
of the Operating Partnership as of such date was substantially the same as the
capitalization of the Partnership as of such date.
(e) Each of the Partnership, the Operating Partnership and
Lakehead Services, Limited Partnership, a Delaware limited partnership (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
Final Prospectus and, with respect to the Partnership, also to act as general
partner of the LPL Partnership.
(f) 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 Final Prospectus.
(g) The accountants, PricewaterhouseCoopers LLP (formerly Price
Waterhouse LLP), who have certified or shall certify the financial statements
included or incorporated by reference in the Registration Statement and the
Final Prospectus (or any amendment or supplement thereto), are independent
public accountants as required by the Act.
(h) The financial statements, together with related schedules and
notes, included or incorporated by reference in the Registration Statement and
the Final Prospectus (and any amendment or supplement thereto), present fairly
the consolidated financial position, results of operations and changes in
financial position of the Partnership and the Operating Partnership on the basis
stated in the Registration Statement at the respective dates or for the
respective
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periods to which they apply; such statements and related schedules and notes
have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data included
or incorporated by reference in the Registration Statement and the Final
Prospectus (and any amendment or supplement thereto) are accurately presented
and prepared on a basis consistent with such financial statements and the books
and records of the Companies.
(i) 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.
(j) The Indenture has been duly authorized by the Operating
Partnership and duly qualified under the 1939 Act and, when duly executed and
delivered by the Operating Partnership and the Trustee, will, based upon the
advice of counsel, constitute a valid and legally binding agreement of the
Operating Partnership, enforceable against the Operating Partnership in
accordance with its terms, except 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.
(k) The Securities have been duly authorized and, at the Closing
Time, will have been duly executed by the Operating Partnership and, when
authenticated, issued and delivered in the manner provided for in the Indenture
and delivered against payment of the purchase price therefor as provided in this
Agreement, will, based upon the advice of counsel, constitute valid and binding
obligations of the Operating Partnership, enforceable against the Operating
Partnership in accordance with their terms, except 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, and will be in the form contemplated by, and entitled to the
benefits of, the Indenture.
(l) The Securities and the Indenture will conform in all material
respects to the respective statements relating thereto contained in the
Preliminary Prospectus and the Final Prospectus and will be in substantially the
respective forms filed or incorporated by reference, as the case may be, as
exhibits to the Registration Statement.
(m) Neither the offer, sale or delivery of the Securities, the
execution, delivery or performance of this Agreement, the Indenture and the
Securities, compliance by any of the Companies with the provisions hereof or
thereof 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
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which any of the Companies or the LPL
Partnership is a party or by which any of them may be bound or to which
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any of their respective properties is subject, nor will any such action result
in any violation of any existing law, regulation, ruling (assuming compliance
with all applicable federal and state securities and Blue Sky laws), judgment,
injunction, order or decree to which any of the Companies or the LPL Partnership
is a named party, excluding in each case any breaches, defaults or violations
which, individually or in the aggregate, would not have a material adverse
effect on the financial position, results of operations, business or prospects
of the General Partner or the Partnership and the Operating Partnership (taken
as a whole) (a "Material Adverse Effect").
(n) Except as disclosed in the Registration Statement and the
Final Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Final Prospectus (or any amendment or supplement thereto),
none of the Companies nor 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 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 Operating 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.
(o) Except as disclosed in the Registration Statement and the
Final Prospectus (or any amendment of supplement thereto), no more than ten
percent of the net proceeds from the sale of the Securities 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.
(p) The Commission has issued an order under the Act declaring
the Registration Statement effective and qualifying the Indenture under the 1939
Act and no other consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the issuance of the Securities or the consummation by the Operating
Partnership of the other transactions contemplated by this Agreement and the
Indenture, except such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or blue sky laws in
connection with the issuance by the Operating Partnership of the Securities and
the purchase and distribution of the Securities by the Underwriters.
(q) The General Partner has (excluding its interests in the
Partnership and the Operating Partnership) a net worth of at least $35 million.
(r) Based upon the advice of counsel, none of the Companies is,
or as of the Closing Time will be, an "Investment Company" as that term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act"), or required to register as an "Investment Company" under the
Investment Company Act.
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(s) 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" required to be registered under the Public Utility Holding Company Act
of 1935, as amended (the "1935 Act"), or (iv) an "affiliate" of (A) a
"registered holding company," (B) a "holding company" required to be registered
under the 1935 Act, (C) a "subsidiary company" of a "registered holding company"
or (D) a "subsidiary company" of a "holding company" required to be registered
under the 1935 Act, as such terms are defined in the 1935 Act. Based upon the
advice of counsel, the issuance and sale of the Securities as contemplated by
the Final Prospectus is not subject to regulation under the 1935 Act.
(t) 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 Final Prospectus and are not
described as required.
7. Indemnification and Contribution. (a) Each of the Companies,
jointly 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 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 the Preliminary
Prospectus, or the Final Prospectus or in the Registration Statement 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 Operating Partnership by or on behalf of the Underwriters
expressly for use in connection therewith; provided, however, that the only
information furnished in writing to the Operating Partnership by or on behalf of
the Underwriters are the statements noted in Section 12 hereof; and provided,
further, that the indemnification contained in this paragraph (a) with respect
to the Preliminary 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
Securities by such Underwriter to any person if a copy of the Final 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 Preliminary Prospectus was
corrected in the Final Prospectus, provided that the Operating Partnership has
delivered the Final Prospectus to the several Underwriters in requisite
quantities on a timely basis to permit such
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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 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 the Underwriters, which firm
shall be designated in writing by Xxxxxxx Xxxxx, 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 Preliminary Prospectus, the Final Prospectus,
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or any amendment or supplement thereto; provided, however, that the only
information furnished in writing to the Operating Partnership by or on behalf of
the Underwriters are the statements noted in Section 12 hereof. 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 Preliminary
Prospectus or the Final 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, 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 Securities, 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 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 Operating 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 Final 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 Securities by such Underwriter to any person if a copy
of the Final 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
Preliminary Prospectus was corrected in the Final Prospectus, provided that the
Operating Partnership has delivered the Final Prospectus to the several
Underwriters in requisite quantity on a timely basis to permit such delivery or
sending.
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(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 Securities
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 Securities set forth opposite their names in Schedule I
hereto (or such numbers of Securities increased as set forth in Section 10
hereof) and not joint.
(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 Securities 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 Securities in his status as a purchaser.
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8. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters to purchase the Securities 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 Securities 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
the 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 Final Prospectus or otherwise) shall have been complied with to
the Underwriters' satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred 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 Final Prospectus, which
in the opinion of the Underwriters, would materially, adversely affect the
market for the Securities.
(c) The Underwriters shall have received at the Closing Time an
opinion of Xxxxx Xxxxxxxxxx, Senior Counsel of the General Partner, dated the
Closing Time and addressed to the 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.
(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.
(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
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undertake and consummate SEP II (as defined in the Preliminary
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.
(d) The Underwriters shall have received at the Closing Time an
opinion of Xxxxxxx & Xxxxx L.L.P., counsel for the Companies, dated the Closing
Time and addressed to the 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 Final
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 Final 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. 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) 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
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register would be likely in the reasonable judgment of such
counsel to have a Material Adverse Effect.
(iv) The authorized and outstanding partnership interests of
the Partnership are as set forth under the caption "The
Partnership" in the Final 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 owns of record a limited partner interest in the Partnership
(represented by 3,912,750 Class B Common Units) of approximately
14.8%, a general partner interest in the Operating Partnership of
1.0101% and a limited partner interest in the LPL Partnership of
99%. 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%.
(vi) 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 has been issued
and no proceedings for that purpose have been instituted or
threatened by the Commission; and any required filing of the
Final Prospectus pursuant to Rule 424(b) has been made in
accordance with Rule 424(b).
(vii) The Indenture has been duly qualified under the 1939
Act.
(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 Operating Partnership, to
issue, sell and deliver the Securities to the Underwriters as
provided herein.
(ix) This Agreement has been duly authorized, executed and
delivered by each of the Companies.
(x) The Indenture has been duly authorized, executed and
delivered by the Operating Partnership and (assuming the due
authorization, execution and delivery thereof by the Trustee)
constitutes a valid and binding agreement of the Operating
Partnership, enforceable against the Operating Partnership in
accordance with its terms, except as the enforcement thereof may
be limited or affected by (A) bankruptcy, insolvency,
reorganization, moratorium, liquidation, rearrangement,
fraudulent transfer, fraudulent conveyance and other similar laws
(including court
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decisions) now or hereafter in effect and affecting the rights
and remedies of creditors generally or providing for the relief
of debtors, (B) the refusal of a particular court to grant
equitable remedies, including without limitation specific
performance and injunctive relief, and (C) general principles of
equity (regardless of whether such remedies are sought in a
proceeding in equity or at law).
(xi) The Securities are in the form contemplated by the
Indenture, have been duly authorized by the Operating Partnership
and, assuming that the Securities have been duly authenticated by
the Trustee in the manner described in its certificate delivered
to you today (which fact such counsel need not determine by an
inspection of the Securities) and delivered against payment of
the purchase price therefor in accordance with the terms of this
Agreement, the Securities have been duly executed and delivered
by the Operating Partnership and, under the law of the State of
New York, constitute valid and binding obligations of the
Operating Partnership, enforceable against the Operating
Partnership in accordance with their terms, except as the
enforcement thereof may be limited or affected by (A) bankruptcy,
insolvency, reorganization, moratorium, liquidation,
rearrangement, fraudulent transfer, fraudulent conveyance and
other similar laws (including court decisions) now or hereafter
in effect and affecting the rights and remedies of creditors
generally or providing for the relief of debtors, (B) the refusal
of a particular court to grant equitable remedies, including
without limitation specific performance and injunctive relief,
and (C) general principles of equity (regardless of whether such
remedies are sought in a proceeding in equity or at law).
(xii) The Securities and the Indenture conform as to legal
matters in all material respects to the descriptions thereof
contained in the Final Prospectus.
(xiii) Neither the offer, sale or delivery of the Securities,
the execution, delivery or performance of this Agreement, the
Indenture and the Securities, compliance by any of the Companies
with the provisions hereof or thereof 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 (the "Organizational Documents") 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 may be bound or to which any of their respective properties
is subject 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 Operating
Partnership, excluding in each case
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(other than with respect to the Organizational Documents) any
breaches, defaults or violations which, individually or in the
aggregate, would not have a Material Adverse Effect.
(xiv) 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 Securities) for the valid issuance and
sale of the Securities to the Underwriters as contemplated by
this Agreement.
(xv) The Registration Statement and the Final Prospectus and
any supplements or amendments thereto (except for the financial
statements and the notes thereto and the schedules and other
financial 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 data
included therein, as to which counsel need not express any
opinion) complies as to form in all material respects with the
Exchange Act.
(xvi) To the knowledge of such counsel, (A) other than as
described or contemplated in the Final Prospectus (or any
supplement thereto) or any Incorporated Document, 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 the Final 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
Final 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.
(xvii) The Amended and Restated Agreement of Limited
Partnership of the Partnership 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 good
faith and fair dealing, (C) the enforceability of equitable
rights and remedies provided for in
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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 Amended and Restated Agreement of Limited Partnership
of the Operating Partnership 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 Amended and Restated
Agreement of Limited Partnership of the LPL Partnership 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.
(xviii) None of the Companies or the LPL Partnership is an
"Investment Company" as that term is defined in the Investment
Company Act or is required to register as an "Investment Company"
under the Investment Company Act.
(xix) 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.
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,
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the accuracy or completeness of the statements in the Registration Statement,
such counsel has participated in the preparation of the Registration Statement
and the Final 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 Final Prospectus, as of its date and as of the Closing Time, 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 Final
Prospectus, as of its respective date, and as of the Closing Time, 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
data included in the Registration Statement or the Final 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 the 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 Securities pursuant to the Final
Prospectus and other sources believed by such counsel to be responsible, (2)
state that their opinion is limited to federal laws, the Delaware Act, the
Delaware General Corporation Law and New York law, (3) 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 (4)
state that their opinion is furnished as counsel for the Companies and the LPL
Partnership to the Underwriters and is solely for the benefit of the several
Underwriters.
(e) The Underwriters shall have received at the Closing Time an
opinion of Xxxxxxxx & Xxxxxxxx, counsel for the Companies, dated the Closing
Time and addressed to the 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" required to be registered under the
1935 Act or (B) is an "affiliate" of a "registered holding company," or of a
"holding company" required to be registered under the 1935 Act, or of a
"subsidiary company" of a "registered holding company," or of a "holding
company" required to be registered 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
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connection with the issuance and sale of the Securities by the Operating
Partnership as contemplated by the Final 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 the Underwriters its written opinion or opinions, dated as of the Closing
Time in form and substance satisfactory to the Underwriters to the effect that:
(i) 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.
(ii) 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 Final
Prospectus) located in such state and to conduct its business in
such state.
(iii) Neither the offer, sale or delivery of the Securities,
the execution, delivery or performance of this Agreement and the
Indenture, compliance by the Companies with the provisions hereof
or thereof nor consummation by the Companies of the transactions
contemplated hereby or thereby 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 either of the Companies or any
of their respective properties.
(iv) 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 Securities pursuant to the Final Prospectus and
without in any manner having conducted an independent
investigation, any other governmental agency or instrumentality
of such state having jurisdiction over either of the Companies,
as the case may be, or any of their respective properties, is
required for the sale or issuance of the Securities by the
Operating 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
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obtained, would not, individually or in the aggregate, have a
material adverse effect upon the ability of the Operating
Partnership to conduct its business substantially in accordance
with its past practice or (4) as set forth or contemplated in the
Final Prospectus.
(g) The Underwriters shall have received at the Closing Time an
opinion of Steptoe & Xxxxxxx, special FERC counsel for the Companies, dated the
Closing Time and addressed to the 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 Securities, the offer and sale of the Securities by the
Operating Partnership or the execution, delivery and performance
of this Agreement, the Indenture and the Securities.
(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 Final
Prospectus.
(h) The Underwriters shall have received at the Closing Time an
opinion of Loomis, Ewert, Ederer, Parsley, Xxxxx & Gotting, special Michigan
regulatory counsel to the Companies, dated the Closing Time and addressed to the
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 Securities by the Operating
Partnership, except such consents, approvals, authorizations, orders,
registrations or qualifications as have been obtained.
(i) The Underwriters shall have received at the Closing Time an
opinion of XxXxxxxx Xxxxxxxx, Canadian counsel to IPL, dated the Closing Time
and addressed to the 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 Securities as contemplated by
the Final 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.
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(j) The Underwriters shall have received at the Closing Time an
opinion of Xxxxx & Xxxxx, L.L.P., counsel for the Underwriters, dated the
Closing Time, with respect to the matters referred to in clauses (i), (vi),
(vii), (viii), (ix), (x), (xii) and (xv) (but only with respect to the
Registration Statement and the Final Prospectus and any supplements or
amendments thereto) of the foregoing paragraph (d) and such other related
matters as the Underwriters may request.
(k) The Underwriters shall have received letters addressed to the
Underwriters and dated the date hereof and the Closing Time from
PricewaterhouseCoopers LLP, independent accountants, substantially in the forms
heretofore approved by the Underwriters.
(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 Time; (ii) there
shall not have been any change in the capitalization of the Operating
Partnership nor any material increase in the short-term or long-term debt of the
Operating Partnership (other than in the ordinary course of business) from that
set forth or contemplated in the Registration Statement or the Final Prospectus
(or any amendment or supplement thereto); (iii) 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 Final Prospectus (or any
amendment or supplement thereto); and (iv) 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 Time as if made on and as of the Closing Time, and the Underwriters
shall have received a certificate, dated the Closing Time and signed by the
chief executive officer and the chief financial officer of the General Partner
(or such other officers as are acceptable to the Underwriters), 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 Time 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 Time.
(n) At the Closing Time, the Securities shall be rated at least
"A3" by Xxxxx'x Investors Services Inc. and "A-" by Standard & Poor's Ratings
Services, a division of The McGrawHill Companies, Inc., and the Operating
Partnership shall have delivered to the Underwriters a letter dated the Closing
Time, from each such rating agency, or other evidence satisfactory to the
Underwriters, confirming that the Securities have such ratings; and since the
date of this Agreement, there shall not have occurred a downgrading in the
rating assigned to the Securities or any of the Operating Partnership's other
debt securities by any "nationally recognized statistical rating agency," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and no such organization shall have publicly announced that it has under
surveillance or review its rating of the Securities or any of the Operating
Partnership's other debt securities.
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(o) Each of the Operating Partnership and the General Partner
shall have furnished or caused to be furnished to the Underwriters, such further
certificates and documents as the Underwriters 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 the Underwriters and counsel for the Underwriters.
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 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.
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), the Preliminary Prospectus, the Final
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, the Basic Prospectus, the Preliminary Prospectus, the
Final 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 Securities; (iii) the preparation, printing,
authentication, issuance and delivery of the Securities; (iv) the printing (or
reproduction) and delivery of this Agreement, any Agreement among Underwriters,
the Indenture, 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 Securities; (v) the fees and expenses of the Trustee and any
agent of the Trustee and the fees and disbursements of counsel for the Trustee;
(vi) the registration or qualification of the Securities 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 Securities; (ix) the fees and expenses of the accountants for
the Companies; (x) the fees and expenses of counsel (including local and special
counsel) for the Companies; (xi) any fees payable in connection with the rating
of the Securities; and (xii) any fees payable to DTC in connection with the
Securities being book-entry only securities.
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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 Securities 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 the Underwriters, or by the
Underwriters, by notifying the General Partner, on behalf of the Companies.
If one or more of the Underwriters shall fail at Closing Time to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Underwriters shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Underwriters shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the aggregate principal amount of the Securities to be purchased
hereunder, each of the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Securities to be purchased hereunder,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Underwriters or the Operating Partnership shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Final Prospectus or in any other documents or arrangements. As used herein,
the term "Underwriter" includes any person substituted for an Underwriter under
this Section 10.
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 the Underwriters' absolute discretion, without liability on the
part of any Underwriter to the
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Companies by notice to the General Partner, on behalf of the Companies, if prior
to the Closing Time; (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Final Prospectus, any material adverse change in the financial position, results
of operations, business or prospects of the General Partner or the Partnership
and the Operating Partnership (taken as a whole), whether or not arising in the
ordinary course of business; (ii) trading in the Class A Common Units of the
Partnership shall be suspended or subject to any restriction or limitation not
in effect on the date of this Agreement; (iii) 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; (iv) a general
moratorium on commercial banking activities in New York shall have been declared
by either federal or state authorities; or (v) there shall have occurred any
material adverse change in the financial markets in the United States or Canada,
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 the Underwriters' judgment, impracticable or inadvisable to commence or
continue the offering of the Securities on the terms set forth on the cover page
of the Final Prospectus or to enforce contracts for the resale of the Securities
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, second and third paragraphs,
the second sentence of the fifth paragraph and the penultimate sentence of the
last paragraph under the caption "Underwriting" in the Preliminary Prospectus
and in the Final 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: Xxxxx Xxxxxxxxxx, Secretary; or (ii) if to
the Underwriters, care of Xxxxxxx Xxxxx, 0000 XxXxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxx 00000, Attention: Xxx Xxxxx.
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 Securities in his status as such purchaser.
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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. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Companies submitted pursuant hereto, shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or controlling person, or by or on
behalf of the Companies, and shall survive delivery of the Securities to the
Underwriters.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Operating Partnership a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Companies in accordance with
its terms.
Very truly yours,
LAKEHEAD PIPE LINE PARTNERS, L.P.
By: Lakehead Pipe Line Company, Inc.
General Partner
By: /s/ Xxxx X. Xxxx
--------------------------------------
Name: Xxxx X. Xxxx
--------------------------------
Title: Chief Accountant
-------------------------------
LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP
By: Lakehead Pipe Line Company, Inc.
General Partner
By: /s/ Xxxx X. Xxxx
--------------------------------------
Name: Xxxx X. Xxxx
--------------------------------
Title: Chief Accountant
-------------------------------
LAKEHEAD PIPE LINE COMPANY, INC.
By: /s/ Xxxx X. Xxxx
--------------------------------------
Name: Xxxx X. Xxxx
--------------------------------
Title: Chief Accountant
-------------------------------
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CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
CHASE SECURITIES INC.
ABN AMRO INCORPORATED
CIBC XXXXXXXXXXX CORP.
CITICORP SECURITIES, INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX SECURITIES, INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxx X. Xxxxx
-------------------------------
Authorized Signatory
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SCHEDULE A
Principal Principal
Amount of Amount of
Name of Underwriter 2018 Notes 2028 Notes
------------------- ------------ ------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated .............................. $ 52,000,000 $ 52,000,000
Chase Securities Inc. ................................. 24,000,000 24,000,000
ABN AMRO Incorporated ................................. 6,000,000 6,000,000
Citicorp Securities, Inc. ............................. 6,000,000 6,000,000
Credit Suisse First Boston Corporation ................ 6,000,000 6,000,000
CIBC Xxxxxxxxxxx Corp. ................................ 3,000,000 3,000,000
Xxxxxxx Xxxxx Securities, Inc. ........................ 3,000,000 3,000,000
------------ ------------
Total ................................................. $100,000,000 $100,000,000
============ ============
Sch A-1
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SCHEDULE B
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP
$100,000,000 7% Senior Notes due 2018
1. The initial public offering price of the 2018 Notes shall be
99.734% of the principal amount thereof, plus accrued interest, if any, from the
date of issuance.
2. The purchase price to be paid by the Underwriters for the 2018
Notes shall be 98.859% of the principal amount thereof.
3. The interest rate on the 2018 Notes shall be 7% per annum.
4. The 2018 Notes will be redeemable at the option of the Operating
Partnership, in whole or in part, in principal amounts of $1,000 or any integral
multiple thereof, at any time at a redemption price equal to the sum of (a) an
amount equal to 100% of the then-outstanding principal amount thereof and (b)
the applicable Make-Whole Premium (as defined in the Final Prospectus), together
with accrued and unpaid interest to the date fixed for redemption.
Sch B-1
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SCHEDULE B
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP
$100,000,000 7 1/8% Senior Notes due 2028
1. The initial public offering price of the 2028 Notes shall be
99.693% of the principal amount thereof, plus accrued interest, if any, from the
date of issuance.
2. The purchase price to be paid by the Underwriters for the 2028
Notes shall be 98.818% of the principal amount thereof.
3. The interest rate on the 2028 Notes shall be 7 1/8% per annum.
4. The 2028 Notes will be redeemable at the option of the Operating
Partnership, in whole or in part, in principal amounts of $1,000 or any integral
multiple thereof, at any time at a redemption price equal to the sum of (a) an
amount equal to 100% of the then-outstanding principal amount thereof and (b)
the applicable Make-Whole Premium (as defined in the Final Prospectus), together
with accrued and unpaid interest to the date fixed for redemption.
Sch B-2
