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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): APRIL 22, 1999
LAKEHEAD PIPE LINE PARTNERS, L.P.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 1-10934 39-1715850
(STATE OR OTHER JURISDICTION) (COMMISSION FILE NO.) (I.R.S. EMPLOYER
IDENTIFICATION NO.)
LAKE SUPERIOR PLACE, 21 WEST SUPERIOR STREET, DULUTH, MN 55802-2057
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (218) 725-0100
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ITEM 5. OTHER EVENTS
Lakehead Pipe Line Partners, L.P., a Delaware limited partnership (the
"Registrant"), entered into an Underwriting Agreement, dated April 22, 1999 (the
"Underwriting Agreement"), among the Registrant, Lakehead Pipeline Company,
Limited Partnership, a Delaware limited partnership, Lakehead Pipe Line Company,
Inc., a Delaware corporation and the general partner of the Registrant, and the
underwriters named therein in connection with the Registrant's public offering
of 2,700,000 Class A Common Units. The Underwriting Agreement is included as
Exhibit 1.1 to this Form 8-K.
On April 22, 1999, Lakehead Pipe Line Partners, L.P., issued a press
release announcing the public offering of 2,700,000 Class A Common Units. This
press release is included as Exhibit 99.1 to this Form 8-K.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
1.1 Underwriting Agreement, dated April 22, 1999, among the
Registrant, Lakehead Pipe Line Company, Limited Partnership,
Lakehead Pipe Line Company, Inc. and the underwriters named
therein.
99.1 Press Release of Lakehead Pipe Line Partners, L.P.,
announcing the offering of 2,700,000 Class A Common Units.
</TABLE>
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
LAKEHEAD PIPE LINE PARTNERS, L.P.
(Registrant)
By: Lakehead Pipe Line Company, Inc.
as General Partner
/s/ M.A. Maki
--------------------------------------------
M. A. Maki
Chief Accountant
(Principal Financial and Accounting Officer)
Date: April 26, 1999
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
1.1 Underwriting Agreement, dated April 22, 1999, among the
Registrant, Lakehead Pipe Line Company, Limited Partnership,
Lakehead Pipe Line Company, Inc. and the underwriters named
therein.
99.1 Press Release of Lakehead Pipe Line Partners, L.P.,
announcing the offering of 2,700,000 Class A Common Units.
</TABLE>
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EXHIBIT 1.1
2,700,000 Class A Common Units
LAKEHEAD PIPE LINE PARTNERS, L.P.
Representing Class A Limited Partner Interests
UNDERWRITING AGREEMENT
April 22, 1999
SALOMON SMITH BARNEY INC.
GOLDMAN, SACHS & CO.
PAINEWEBBER INCORPORATED
As Representatives of the several Underwriters
named in Schedule I hereto
c/o SALOMON SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
Dear Sirs:
Lakehead Pipe Line Partners, L.P., a Delaware limited partnership (the
"Partnership"), proposes, upon the terms and subject to the conditions set forth
herein, to issue and sell an aggregate of 2,700,000 Class A Common Units
representing limited partner interests in the Partnership (the "Firm Units") to
the several Underwriters named in Schedule I hereto (the "Underwriters"). The
Partnership also proposes, upon the terms and subject to the conditions set
forth herein, to issue and sell to the several Underwriters up to an additional
405,000 Class A Common Units representing limited partner interests in the
Partnership (the "Additional Units"). The Firm Units and the Additional Units
are hereinafter collectively referred to as the "Offered Units," and the Offered
Units and each Class A Common Unit and Class B Common Unit representing limited
partner interest outstanding on the date hereof are hereinafter sometimes
collectively referred to as the "Units."
Each of the Partnership, Lakehead Pipe Line Company, Limited
Partnership, a Delaware limited partnership (the "Operating Partnership"), and
Lakehead Pipe Line Company, Inc., a Delaware corporation (both in its capacity
as general partner of the Partnership and in its individual capacity, the
"General Partner"), wishes to confirm as follows its agreement with you (the
"Representatives") and the other several Underwriters on whose behalf you are
acting, in connection with the several purchases of the Offered Units by the
Underwriters. The Partnership, the Operating Partnership and the General Partner
are sometimes collectively referred to herein as the "Companies."
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1. Registration Statement and Prospectus. The 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. 333-67005) under
the Act, including a prospectus subject to completion relating to the Offered
Units. 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 Offered Units 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 Offered Units may commence, the term
"Registration Statement" as used in this Agreement includes such registration
statement. The term "Basic Prospectus" as used in this Agreement shall mean 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 Offered Units 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 Offered Units 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 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
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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 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 Partnership, at a purchase price of $44.045 per
Unit (the "Purchase Price Per Unit"), the number of Firm Units set forth
opposite the name of such Underwriter in Schedule I hereto (or such number of
Firm Units increased as set forth in Section 10 hereof).
The Partnership also hereby agrees, upon the terms and subject to all the
conditions set forth herein, to sell to the Underwriters, and, upon the basis of
the representations, warranties and agreements of the Companies herein contained
and upon the terms and subject to all the conditions set forth herein, the
Underwriters shall have the right to purchase from the Partnership at the per
Unit purchase price described below, pursuant to an option (the "over-allotment
option") which may be exercised at any time and from time to time prior to 9:00
P.M., New York City time, on the 30th day after the date of the Final Prospectus
(or, if such 30th day shall be a Saturday or Sunday or a holiday, on the next
business day thereafter when the New York Stock Exchange is open for trading),
up to an aggregate of 405,000 Additional Units. If the Option Closing Date (as
defined below) occurs prior to or on the record date for the Partnership's 1999
first quarter quarterly cash distribution (the "Record Date"), then the per Unit
purchase price for each Additional Unit purchased pursuant to the over-allotment
option shall equal the Purchase Price Per Unit. If the Option Closing Date
occurs after the Record Date, then the per Unit purchase price for each
Additional Unit purchased pursuant to the over-allotment option shall be an
amount equal to (x) the Purchase Price Per Unit less (y) the per Unit amount of
the Partnership's 1999 first quarter quarterly cash distribution. Additional
Units may be purchased only for the purpose of covering over-allotments made in
connection with the offering of the Firm Units. Upon any exercise of the
over-allotment option, each Underwriter, severally and not jointly, agrees to
purchase from the Partnership the number of Additional Units (subject to such
adjustments as you, as Representatives of the several Underwriters, may
determine in order to avoid fractional Units) which bears the same proportion to
the aggregate number of Additional Units to be purchased by the Underwriters as
the number of Firm Units set forth opposite the name of such Underwriter in
Schedule I hereto (or such number of Firm Units increased as set forth in
Section 10 hereof) bears to the aggregate number of the Firm Units.
3. Terms of Public Offering. The Partnership has been advised by you, as
Representatives of the several Underwriters, that the Underwriters propose to
make a public offering of their respective portions of the Offered Units as soon
after the Registration Statement and this Agreement have become effective as in
your judgment is advisable and initially to offer the Offered Units upon the
terms set forth in the Final Prospectus.
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4. Delivery of the Offered Units and Payment Therefor. The Offered Units
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
Partnership with The Depository Trust Company ("DTC") or its designated
custodian.
Delivery to the Underwriters of the Firm Units, against payment of the
purchase price therefor in immediately available funds, shall be made by causing
DTC to credit the Firm Units to the account or accounts designated by Salomon
Smith Barney Inc. 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 April 28, 1999 (the
"Closing Date"). The other documents to be delivered at the Closing Date by or
on behalf of the parties hereto shall be delivered at such time and date at the
offices of Baker & Botts, L.L.P., 910 Louisiana, Houston, Texas 77002. The place
of closing for the Firm Units and the Closing Date may be varied by agreement
between you and the Partnership.
Delivery to the Underwriters of the Additional Units to be purchased by the
Underwriters, against payment of the purchase price therefor in immediately
available funds, shall be made by causing DTC to credit the Additional Units to
the account or accounts designated by Salomon Smith Barney Inc. on behalf of the
Underwriters at DTC at such time on such date (the "Option Closing Date"), which
may be the same as the Closing Date but shall in no event be earlier than the
Closing Date nor earlier than two nor later than ten business days after the
giving of the notice hereinafter referred to, as shall be specified in a written
notice from you on behalf of the Underwriters to the Partnership of the
Underwriters' determination to purchase a number, specified in such notice, of
Additional Units. The other documents to be delivered at the Option Closing Date
by or on behalf of the parties hereto shall be delivered at such time and date
at the offices of Baker & Botts, L.L.P., 910 Louisiana, Houston, Texas 77002.
The place of closing for any Additional Units and the Option Closing Date for
such Units may be varied by agreement between you and the Partnership.
The global certificates representing the Offered Units to be delivered to
the Underwriters shall be made available to you 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 Date or the Option Closing Date, as the
case may be.
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 Offered Units may commence,
the Partnership and the General Partner will endeavor to cause the Registration
Statement or such post-effective amendment to become effective as soon as
possible and will advise you and counsel for the Underwriters promptly and, if
requested by you, will confirm such advice in writing, when the Registration
Statement or such post-effective amendment has become effective.
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(b) During the period of time referred to in the second sentence in
paragraph (f) below, the Partnership and the General Partner will advise you and
counsel for the Underwriters promptly and, if requested by you, will confirm
such advice in writing: (i) of any request by the Commission for amendment of or
a supplement to the Registration Statement, 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 Offered Units for offering or sale in any jurisdiction or
the initiation of any proceeding for such purpose; and (iii) 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 within the period of time referred to in the second sentence
in paragraph (f) below, the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Partnership and the General
Partner will make every reasonable effort to obtain the withdrawal of such order
at the earliest possible time.
(c) The Partnership and the General Partner will furnish to you, at your
request and without charge, (i) one signed copy of the Registration Statement as
originally filed with the Commission and of each amendment thereto, including
financial statements and all exhibits to the Registration Statement, (ii) such
number of conformed copies of the Registration Statement as originally filed and
of each amendment thereto, but without exhibits, as you may request, (iii) such
number of copies of the Incorporated Documents, without exhibits, as you may
request, and (iv) such number of copies of the exhibits to the Incorporated
Documents as you may request.
(d) Prior to the end of the period of time referred to in the second
sentence in paragraph (f) below, neither the 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, file any
document which, upon filing becomes an Incorporated Document, of which you and
counsel for the Underwriters shall not previously have been advised or to which,
after you and counsel for the Underwriters shall have received a copy of the
document proposed to be filed, you shall reasonably object; provided that your
consent shall not be unreasonably withheld or delayed.
(e) Prior to the execution and delivery of this Agreement, the Partnership
and the General Partner have delivered to you, without charge, in such
quantities as you have requested, copies of the Preliminary Prospectus. The
Partnership and the General Partner consent to the use, in accordance with the
provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Offered Units are offered by the several Underwriters
and by
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dealers, prior to the date of the Final Prospectus, of the Preliminary
Prospectus so furnished by the Partnership and the General Partner.
(f) The Partnership shall 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 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 you may reasonably
request. The 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 Offered Units are
offered by the several Underwriters and by all dealers to whom Offered Units may
be sold, both in connection with the offering and sale of the Offered Units and
for such period of time thereafter as the 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
Partnership or the General Partner or in the opinion of counsel for the
Underwriters is required to be set forth in the Final Prospectus (as then
amended or supplemented) or should be set forth therein in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary to supplement or amend the 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 Partnership and the General Partner will forthwith prepare and, subject
to the provisions of paragraph (d) above, file with the Commission an
appropriate supplement or amendment thereto (or to such document), and will
expeditiously furnish to the Underwriters and dealers a reasonable number of
copies thereof. In the event that the Partnership or the General Partner and the
several Underwriters agree that the Final Prospectus should be amended or
supplemented, the Partnership and the General Partner, if requested by you, will
promptly issue a press release announcing or disclosing the matters to be
covered by the proposed amendment or supplement.
(g) The Partnership and the General Partner will cooperate with you and
with counsel for the Underwriters in connection with the registration or
qualification of the Offered Units for offering and sale by the several
Underwriters and by dealers under the securities or Blue Sky laws of such
jurisdictions as you may designate and will file such consents to service of
process or other documents necessary or appropriate in order to effect such
registration or qualification; provided that in no event shall the Partnership
be obligated to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action which would subject it to service of process
in suits, other than those arising out of the offering or sale of the Offered
Units, in any jurisdiction where it is not now so subject.
(h) The Partnership and the General Partner will make generally available
to security holders of the Partnership a consolidated earnings statement, which
need not be audited,
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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 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 Partnership will apply the net proceeds from the sale of the
Offered Units substantially in accordance with the description set forth in the
Final Prospectus.
(k) Except as provided in this Agreement, neither the Partnership nor
the General Partner will offer, sell, contract to sell or otherwise dispose of
or hedge any Units or any securities substantially similar to, convertible into
or exercisable or exchangeable for Units, or grant any options or warrants to
purchase any Units or any such securities, for a period of 90 days after the
date of the Final Prospectus, without the prior written consent of Salomon Smith
Barney Inc.
(l) Except as stated in this Agreement and in the Preliminary
Prospectus and the Final Prospectus, none of the Companies has taken, nor will
take, directly or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the price of the
Units to facilitate the sale or resale of the Offered Units.
(m) The Partnership and the General Partner will use their best
efforts to have the Offered Units listed, subject to official notice of
issuance, on the New York Stock Exchange on or before the Closing Date.
(n) Upon the issuance of the Offered Units by the Partnership, the
General Partner shall make the additional capital contributions to the
Partnership as required by Section 4.4(c) of the Amended and Restated Agreement
of Limited Partnership of the Partnership (the "Partnership Agreement").
(o) The Partnership, during the period of time referred to in the
second sentence in paragraph (f) above, 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:
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(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 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 Partnership and the offering of the Offered Units
contemplated by this Agreement meet the requirements for using Form S-3 under
the Act. The Registration Statement in the form in which it became or becomes
effective and also in such form as it may be when any post-effective amendment
thereto shall become effective and the Final Prospectus and any supplement or
amendment thereto when filed with the Commission under Rule 424(b) and at the
Closing Date and if applicable, at the Option Closing Date, complied or will
comply in all material respects with the provisions of the Act, and will not at
any such times contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the statements made or to be made in such documents
that are covered by Rule 175(b) under the Act were made or will be made with a
reasonable basis and in good faith, except that this representation and warranty
does not apply to statements in or omissions from the Registration Statement or
the Final Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Partnership in writing by or on
behalf of any Underwriter expressly for use therein.
(c) The Incorporated Documents heretofore filed, when they were filed
(or, if any amendment with respect to any such document was filed, when such
amendment was filed), conformed in all material respects with the requirements
of the Exchange Act; any further Incorporated Documents so filed will, when they
are filed, conform in all material respects with the requirements of the
Exchange Act; no such document when it was filed (or, if an amendment with
respect to any such document was filed, when such amendment was filed),
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading; and no such further document, when it is filed, will
contain an untrue statement of a material fact or will omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading.
(d) The capitalization of the Partnership as of December 31, 1998 was
as set forth in the Final Prospectus under "Capitalization."
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(e) The Offered Units and the limited partner interests represented
thereby are authorized by the Partnership Agreement and, when issued, delivered
and paid for in accordance with Section 4 hereof, will be validly issued, fully
paid and non-assessable (except as such non-assessibility may be affected by the
matters described under the caption "Summary Description of the Partnership
Agreement -- Limited Liability" in Amendment No. 3 to the Partnership's
Registration Statement on Form S-1 (Registration No. 33-43425) which is
incorporated by reference into the Partnership's Registration Statement on Form
8-A, dated November 14, 1991, as amended by Amendment No. 1 to Form 8-A on Form
8, dated December 9, 1991, and Amendment No. 2 on Form 8-A/A, dated May 2, 1997
(the "Form 8-A")) and free of any preemptive or similar rights (except for the
required Capital Contributions (as defined in the Partnership Agreement) to the
Partnership to be made by the General Partner pursuant to Section 4.4(c)(ii) of
the Partnership Agreement), and the Underwriters will acquire such Units free
and clear of any liens, encumbrances, security interests, charges or claims.
(f) Each of the Partnership, 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.
(g) The General Partner has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with the corporate power and authority to own or lease its properties,
to conduct its businesses, 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.
(h) The accountants, PricewaterhouseCoopers LLP, who have certified
or shall certify the financial statements included or incorporated by reference
in the Registration Statement and the Final Prospectus (or any amendment or
supplement thereto), are independent public accountants as required by the Act.
(i) The financial statements, together with related schedules and
notes, included or incorporated by reference in the Registration Statement and
the Final Prospectus (and any amendment or supplement thereto), present fairly
the consolidated financial position, results of operations and changes in
financial position of the Partnership and the Operating Partnership on the basis
stated in the Registration Statement at the respective dates or for the
respective periods to which they apply; such statements and related schedules
and notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except as
disclosed therein; and the other financial and statistical information and data
included or incorporated by reference in the Registration Statement and the
Final
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Prospectus (and any amendment or supplement thereto) are accurately presented
and prepared on a basis consistent with such financial statements and the books
and records of the Companies.
(j) The execution and delivery of, and the performance by each of the
Companies of its obligations under this Agreement have been duly and validly
authorized by each of such Companies, as the case may be, and this Agreement has
been duly executed and delivered by each of the Companies.
(k) Based upon the advice of counsel, neither the offer, sale or
delivery of the Offered Units, the execution, delivery or performance of this
Agreement, compliance by any of the Companies with the provisions hereof nor
consummation by any of the Companies of the transactions contemplated hereby
constitutes a breach of, or a default under, the partnership agreement,
certificate or articles of incorporation or bylaws, or other organizational
documents, of any of the Companies or the LPL Partnership (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, excluding in each case (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 on the financial position, results of operations, business or prospects
of the General Partner or the Partnership and the Operating Partnership (taken
as a whole) (a "Material Adverse Effect").
(l) Except as disclosed in the Registration Statement and the Final
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Final Prospectus (or any amendment or supplement thereto),
none of the Companies nor the LPL Partnership has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in the
ordinary course of business, that is material to the limited partners of the
Partnership, the General Partner or the Partnership and the Operating
Partnership (taken as a whole), and there has not been any change in the capital
stock or partner's capital, or material increase in the short-term debt or
long-term debt of, any of the Companies, or any material adverse change, or any
development that the Partnership and the General Partner have reasonable cause
to believe will involve a prospective material adverse change, in the financial
position, business, prospects or results of operations of any of the Companies.
(m) None of the Companies has distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of the
Offered Units, will distribute any offering material in connection with the
offering and sale of the Offered Units other than the Preliminary Prospectus,
the Final Prospectus or other materials, if any, permitted by the Act.
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(n) Except as disclosed in the Registration Statement and the Final
Prospectus (or any amendment of supplement thereto), no more than ten percent of
the net proceeds from the sale of the Offered Units are intended to be or will
be paid to members of the National Association of Securities Dealers or
associated or affiliated persons of such members, or members of the immediate
family of such members.
(o) Except for the General Partner, who has waived such rights, no
holder of any security of the Partnership or any other person has any right to
require registration of Units or any other interest or other security of the
Partnership because of the filing of the registration statement or consummation
of the transactions contemplated by this Agreement.
(p) The General Partner has (excluding its interests in the
Partnership and the Operating Partnership) a net worth of at least $35 million.
(q) Based upon the advice of counsel, none of the Companies is, or as
of the Closing Date will be, an "Investment Company" as that term is defined in
the Investment Company Act of 1940, as amended (the "Investment Company Act"),
or required to register as an "Investment Company" under the Investment Company
Act.
(r) Based upon the advice of counsel, none of the Companies 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 Offered Units as contemplated by
the Final Prospectus is not subject to regulation under the 1935 Act.
(s) There are no legal or governmental proceedings pending or, to the
knowledge of any of the Companies, threatened, against any of the Companies or
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
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based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating to
such Underwriter furnished in writing to the Partnership by or on behalf of the
Underwriters expressly for use in connection therewith; provided, however, that
the only information furnished in writing to the 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
Offered Units 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 Partnership
has delivered the Final Prospectus to the several Underwriters in requisite
quantities on a timely basis to permit such delivery or sending. The foregoing
indemnity agreement shall be in addition to any liability which any of the
Companies may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act in respect of which
indemnity may be sought against any of the Companies, such Underwriter or such
controlling person shall promptly notify the General Partner on behalf of the
Companies, and the Companies shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Underwriters and payment of
all fees and expenses. Such Underwriter or any such controlling person shall
have the right to employ separate counsel in any such action, suit or proceeding
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such controlling person
unless (i) the Companies have agreed in writing to pay such fees and expenses,
(ii) the Companies have failed to assume the defense and employ counsel
reasonably satisfactory to the Underwriters or (iii) the named parties to any
such action, suit or proceeding (including any impleaded parties) include both
such Underwriter or such controlling person and any of the Companies and such
Underwriter or such controlling person shall have been advised by its counsel
that representation of such indemnified party and one or more of the Companies
by the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same counsel has
been proposed) due to actual or potential differing interests between them (in
which case the Companies shall not have the right to assume the defense of such
action, suit or proceeding on behalf of such Underwriter or such controlling
person). It is understood, however, that the Companies shall, in connection with
any one such action, suit or proceeding or separate but substantially similar or
related actions, suits or 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
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<PAGE> 13
counsel) at any time for all such Underwriters and controlling persons not
having actual or potential differing interests with you, which firm shall be
designated in writing by Salomon Smith Barney Inc., and that all such fees and
expenses shall be reimbursed as they are incurred. None of the Companies shall
be liable for any settlement of any such action, suit or proceeding effected
without its written consent, but if settled with such written consent, or if
there be a final judgment for the plaintiff in any such action, suit or
proceeding, each of the Companies, jointly and severally, agrees to indemnify
and hold harmless any Underwriter, to the extent provided in the preceding
paragraph, and any such controlling person from and against any loss, claim,
damage, liability or expense by reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless each of the Companies, the directors of the General Partner,
the officers of the General Partner who sign the Registration Statement, and any
person who controls any of the Companies within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Companies to each Underwriter, but only with respect to
information relating to such Underwriter furnished in writing by or on behalf of
such Underwriter expressly for use in the Registration Statement, the
Preliminary Prospectus, the Final Prospectus, or any amendment or supplement
thereto; provided, however, that the only information furnished in writing to
the 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 Offered Units, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Companies on the one hand and the Underwriters on
the other hand in 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
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<PAGE> 14
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Partnership bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Final Prospectus;
provided that, in the event that the Underwriters shall have purchased any
Additional Units, hereunder, any determination of the relative benefits received
by the Companies or the Underwriters from the offering of the Offered Units
shall include the net proceeds (before deducting expenses) received by the
Partnership and the underwriting discounts and commissions received by the
Underwriters, from the sale of such Additional Units. The relative fault of the
Companies on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Companies on the one hand
or by the Underwriters on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, including, with respect to any Underwriter, the extent to
which any such loss, claim, damage or liability arises from the sale of Offered
Units by such Underwriter to any person if a copy of the 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 Partnership has delivered
the Final Prospectus to the several Underwriters in requisite quantity on a
timely basis to permit such delivery or sending.
(e) The Companies and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
a pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
any claim or defending any such action, suit or proceeding. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price of the Offered Units
underwritten by it and distributed to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective numbers of Firm Units set forth opposite their names in Schedule I
hereto (or such numbers of Firm Units increased as set forth in Section 10
hereof) and not joint.
(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
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<PAGE> 15
been sought hereunder by such indemnified party, unless such settlement includes
an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Companies set forth in this Agreement
shall remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, any of the Companies, the directors of the General Partner or
officers of the General Partner, or any person controlling any of the Companies,
(ii) acceptance of any Offered Units and payment therefor hereunder, and (iii)
any termination of this Agreement. A successor to any Underwriter or any person
controlling any Underwriter, or to any of the Companies or the directors or
officers of the General Partner, or any person controlling any of the Companies,
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 7. The term "successor," as
used in this Agreement, shall not include a purchaser from any Underwriter of
any Units in his status as a purchaser.
8. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase the Firm Units hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Offered Units may commence,
the Registration Statement or such post-effective amendment shall have become
effective not later than 5:30 P.M., New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by you, as
Representatives of the several Underwriters, and all filings, if any, required
by Rule 424 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 your 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 Representatives, would materially, adversely affect the
market for the Offered Units.
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(c) You shall have received on the Closing Date an opinion of Susan
Lenczewski, Corporate Secretary of the General Partner, dated the Closing Date
and addressed to you, as Representatives of the several Underwriters, to the
effect that:
(i) There is no action, proceeding or investigation pending
or, to the best of such counsel's knowledge after due inquiry,
threatened against any of the Companies or the LPL Partnership which
in such counsel's judgment could reasonably be expected to have a
Material Adverse Effect.
(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 undertake and consummate Phase I of
Terrace (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) You shall have received on the Closing Date an opinion of Andrews
& Kurth L.L.P., counsel for the Companies, dated the Closing Date and addressed
to you, as Representatives of the several Underwriters, to the effect that:
(i) Each of the Partnership, the Operating Partnership and
the LPL Partnership has been duly formed and is validly existing as a
limited partnership in good standing under the Delaware Revised
Uniform Limited Partnership Act (the "Delaware Act"), with partnership
power and authority to own or lease its properties and to conduct its
business as described in the 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
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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. Enbridge Pipelines Inc. ("Enbridge") is the record owner of
all of the issued and outstanding shares of capital stock of the
General Partner.
(iii) To the knowledge of such counsel (after due inquiry),
Wisconsin and Minnesota are the only jurisdictions within the United
States in which the Partnership or the LPL Partnership own or lease
property or conduct any business so as to require qualification or
registration to conduct business as a foreign limited partnership, and
in which the failure so to qualify or register as a foreign limited
partnership would be likely in the reasonable judgment of such counsel
to have a Material Adverse Effect or would be likely in the reasonable
judgment of such counsel to subject the limited partners of the
Partnership to any material liability or disability. The Operating
Partnership has been qualified or registered as a foreign limited
partnership to conduct business in the States of Illinois, Indiana,
Michigan, Minnesota, New York, North Dakota and Wisconsin and, to the
knowledge of such counsel (after due inquiry), such jurisdictions are
the only jurisdictions in which the Operating Partnership owns or
leases property, or conducts any business, so as to require
qualification or registration to conduct business as a foreign limited
partnership and in which the failure to so qualify or register would
be likely in the reasonable judgment of such counsel to have a
Material Adverse Effect.
(iv) The authorized and outstanding partnership interests of
the Partnership are as set forth under the caption "Lakehead" in the
Final Prospectus and, insofar as such descriptions relate to legal
matters or descriptions of provisions of the governing instruments,
each of the Units and the Partnership Agreement conforms in all
material respects to the descriptions thereof in the 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
prior to the consummation of the issuance and sale of the Firm Units
hereunder, owns of record a limited partner interest in the
Partnership (represented by 3,912,750 Class B Common Units) of
approximately 14.8%, a
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general partner interest in the Operating Partnership of 1.0101% and a
limited partner interest in the LPL Partnership of 99%, and, upon
consummation of the issuance and sale of the Firm Units hereunder,
will own of record, a limited partner interest in the Partnership
(represented by 3,912,750 Class B Common Units) of approximately
13.3%. The Partnership is the sole general partner of the LPL
Partnership and owns of record a general partner interest in the LPL
Partnership of 1.0%. The Partnership is the sole limited partner of
the Operating Partnership and owns of record a limited partner
interest in the Operating Partnership of 98.9899%. The general partner
interest and the Units in the Partnership are authorized by the
Partnership Agreement, the general partner interest and the limited
partner interest in the Operating Partnership are authorized by the
Amended and Restated Agreement of Limited Partnership of the Operating
Partnership (the "Operating Partnership Agreement"), the general
partner interest and the limited partner interest in the LPL
Partnership are authorized by the Agreement of Limited Partnership of
the LPL Partnership (the "LPL Partnership Agreement"), and (A) each of
such general partner interests and limited partner interests and (B)
each Unit outstanding on the date of the Prospectus and the limited
partnership interests represented thereby, is validly issued and fully
paid (with respect to such general partner interests, only to the
extent required at such time) and, with respect to such limited
partner interests and Units, non-assessable (except as such
non-assessibility may be affected by matters described in the Form
8-A) and, with respect to the interests described in clause (A), is
owned of record by the party indicated in the Prospectus, in each case
free and clear of any liens, encumbrances, security interests, charges
or claims of record (1) in respect of which a financing statement
under the Uniform Commercial Code of the State of Delaware naming the
General Partner, the Partnership or the Operating Partnership as
debtor is on file in the office of the Secretary of State of the State
of Delaware or (2) otherwise known (based solely upon its
participation as counsel in matters relating to the offering of the
Offered Units and without having conducted an independent
investigation) to such counsel, other than those created by or arising
under the Delaware Act.
(vi) The Offered Units to be issued and sold to the
Underwriters by the Partnership hereunder have been duly and validly
authorized and executed by the Partnership and, when issued and
delivered to the Underwriters against payment therefor in accordance
with the terms hereof, will be validly issued, fully paid and
non-assessable (except as such non-assessibility may be affected by
the matters described in the Form 8-A), and free of any preemptive or
similar rights (except for the required Capital Contributions to the
Partnership to be made by the General Partner pursuant to Section
4.4(c)(ii) of the Partnership Agreement) that entitle or will entitle
any person to acquire any partnership interest in the Partnership,
upon the issuance thereof by the Partnership, arising under the
Partnership Agreement or, to the knowledge of such counsel without any
independent investigation, any other agreement to which the
Partnership is a party or by which it is bound, and the
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<PAGE> 19
Underwriters will acquire the Offered Units free and clear of any
liens, encumbrances, security interests, charges or claims of record
(A) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the General Partner,
the Partnership or the Operating Partnership as debtor is on file in
the office of the Secretary of State of the State of Delaware or (B)
otherwise known (based solely upon its participation as counsel in
matters relating to the offering of the Offered Units and without
having conducted an independent investigation) to such counsel, except
as created by this Agreement or by the Underwriters or any person who
acquires an interest in the Offered Units through the Underwriters or
as provided by the Delaware Act.
(vii) The Registration Statement and all post-effective
amendments thereto, if any, have become effective under the Act and,
to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement 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).
(viii) Each of the Companies has the partnership or corporate
power and authority, as the case may be, to enter into this Agreement
and, in the case of the Partnership, to issue, sell and deliver the
Offered Units to the Underwriters as provided herein.
(ix) This Agreement has been duly authorized, executed and
delivered by each of the Companies.
(x) Neither the offer, sale or delivery of the Offered Units,
the execution, delivery or performance of this Agreement, compliance
by any of the Companies with the provisions hereof nor consummation by
any of the Companies of the transactions contemplated hereby
constitutes a breach of, or a default under, the partnership
agreement, certificate or articles of incorporation or bylaws, or
other organizational documents, of any of the Companies or the LPL
Partnership (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 Partnership,
excluding in each case (other than with respect to the Organizational
Documents) any breaches, defaults or violations which, individually or
in the aggregate, would not have a
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Material Adverse Effect; except for the rights of the General Partner
and its Affiliates (as such term is defined in the Partnership
Agreement and used in Section 6.14 of the Partnership Agreement), to
such counsel's knowledge, neither the filing of the Registration
Statement nor the offering or sale of the Offered Units as
contemplated by this Agreement gives rise to any rights for or
relating to the registration of any interests in or securities of the
Partnership, the Operating Partnership or the LPL Partnership.
(xi) No consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency, or official
is required on the part of any of the Companies (except as have been
obtained under the Act or such as may be required under state
securities or Blue Sky laws governing the purchase and distribution of
the Offered Units) for the valid issuance and sale of the Offered
Units to the Underwriters as contemplated by this Agreement.
(xii) The Registration Statement and the 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.
(xiii) 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.
(xiv) The Partnership Agreement has been duly authorized,
executed and delivered by the General Partner and is a valid and
legally binding agreement of the General Partner, enforceable against
the General Partner in accordance with its terms, subject to the
qualifications that (A) the enforceability of such document may be
limited by bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights
generally, (B) the enforceability
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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
Operating Partnership Agreement has been duly authorized, executed and
delivered by the General Partner and the Partnership and is a valid
and legally binding agreement of the General Partner and the
Partnership, enforceable against the General Partner and the
Partnership in accordance with its terms, subject to the
qualifications that (A) the enforceability of such document may be
limited by bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights
generally, (B) the enforceability of such document may be limited by
public policy, applicable law relating to fiduciary duties and the
judicial imposition of an implied covenant of good faith and fair
dealing, (C) the enforceability of equitable rights and remedies
provided for in such document is subject to equitable defenses and
judicial discretion, and the enforceability of such document may be
limited by general equitable principles and (D) the enforceability of
the indemnity and contribution provisions of such document may be
limited by federal and state securities laws; the LPL Partnership
Agreement has been duly authorized, executed and delivered by the
Partnership and the General Partner and is a valid and legally binding
agreement of the Partnership and the General Partner, enforceable
against the Partnership and the General Partner in accordance with its
terms, subject to the qualifications that (A) the enforceability of
such document may be limited by bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights generally, (B) the enforceability of such document
may be limited by public policy, applicable law relating to fiduciary
duties and the judicial imposition of any implied covenant of good
faith and fair dealing, (C) the enforceability of equitable rights and
remedies provided for in such document is subject to equitable
defenses and judicial discretion, and the enforceability of such
document may be limited by general equitable principles and (D) the
enforceability of the indemnity and contribution provisions of such
document may be limited by federal and state securities laws.
(xv) None of the Companies or the LPL Partnership is an
"Investment Company" as that term is defined in the Investment Company
Act or is required to register as an "Investment Company" under the
Investment Company Act.
(xvi) None of the Companies or the LPL Partnership is a "public
utility company" or a "holding company" as such terms are defined in
the 1935 Act.
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<PAGE> 22
(xvii) The opinion of Andrews & Kurth L.L.P. that was filed as
Exhibit 8.1 to the Registration Statement is confirmed and the
Underwriters may rely upon such opinion as if it were addressed to
them.
Such counsel shall also state that although such counsel has not undertaken,
except as otherwise indicated in their opinion, to determine independently, and
does not assume any responsibility for, the accuracy or completeness of the
statements in the Registration Statement, such counsel has participated in the
preparation of the Registration Statement and the 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 Date or the Option Closing Date, as the case may be, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that any amendment or supplement to the Final Prospectus, as of its
respective date, and as of the Closing Date or the Option Closing Date, as the
case may be, contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements and the notes thereto and the schedules and other financial
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 Offered Units pursuant to the
Final Prospectus and other sources believed by such counsel to be responsible,
(2) assume that the certificates for the Offered Units conform to the specimens
thereof examined by them and have been duly countersigned by a transfer agent
and duly registered by a registrar of the Units and that the signatures on all
documents examined by such counsel are genuine, which assumptions they may state
they have not independently verified, (3) state that their opinion is limited to
federal laws, the Delaware Act, the Delaware General Corporation Law and New
York law, (4) state that they express no opinion with respect to state or local
taxes or tax statutes to which any of the Partnership, the limited partners of
the Partnership, the Operating Partnership, the General Partner or the LPL
Partnership may be subject and (5) state that their opinion is furnished as
counsel for the Companies and the LPL Partnership to you, as Representatives of
the several Underwriters, and is solely for the benefit of the several
Underwriters.
22
<PAGE> 23
(e) You shall have received on the Closing Date an opinion of
Sullivan & Cromwell, counsel for the Companies, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, to the effect
that (i) none of the Companies or the LPL Partnership is (A) a "subsidiary
company" of a "registered holding company," or of a "holding company" 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 connection with
the issuance and sale of the Offered Units by the Partnership as contemplated by
the Final Prospectus.
(f) Each of (i) Sidley & Austin, with respect to the State of
Illinois, (ii) Barnes & Thornburg, with respect to the State of Indiana, (iii)
Butzel Long, with respect to the State of Michigan, (iv) Magie, Andresen, Hagg,
Paciotti, Butterworth & McCarthy, P.A., with respect to the State of Minnesota,
(v) Phillips, Lytle, Hitchcock, Blaine & Huber, with respect to the State of New
York, (vi) Pearce & Durick, with respect to the State of North Dakota and (vii)
DeWitt, Ross & Stevens S.C., with respect to the State of Wisconsin, each of
which is acting as special local counsel for the Companies, shall have furnished
to you, as Representatives of the several Underwriters, its written opinion or
opinions, dated as of the Closing Date in form and substance satisfactory to
you, to the effect that:
(i) The Partnership need not be qualified or registered as a
foreign limited partnership for the transaction of business under the
laws of such state. [As to Wisconsin and Minnesota only -- The
Partnership has been duly qualified or registered as a foreign limited
partnership to conduct business in such state.]
(ii) Neither the offer, sale or delivery of the Offered Units,
the execution, delivery or performance of this Agreement, compliance
by the Companies with the provisions hereof nor consummation by the
Companies of the transactions contemplated hereby will result in any
violation of any existing law, regulation, ruling (assuming compliance
with all applicable state securities and Blue Sky laws), judgment,
injunction, order or decree known to such counsel after reasonable
inquiry, applicable to any of the Companies or any of their respective
properties.
(iii) No consent, approval, authorization, order, registration
or qualification of or with any governmental agency or instrumentality
of such state governing (A) oil pipelines generally or (B) the
issuance of securities by entities owning oil pipelines, or, to such
counsel's knowledge, based solely upon its participation as special
counsel in matters relating to the offering of the Offered Units
pursuant to the Final Prospectus and without in any manner having
conducted an independent investigation, any other governmental agency
or instrumentality of
23
<PAGE> 24
such state having jurisdiction over any of the Companies, as the case
may be, or any of their respective properties, is required for the
issuance of the Offered Units by the Partnership, except such
consents, approvals, authorizations, orders, registrations or
qualifications (1) as have been obtained, (2) as may be required under
state securities or Blue Sky laws, (3) which, if not obtained, would
not, individually or in the aggregate, have a material adverse effect
upon the ability of the Partnership and the Operating Partnership
(taken as a whole) to conduct their business substantially in
accordance with the past practice of each, or (4) as set forth or
contemplated in the Final Prospectus.
(g) You shall have received on the Closing Date an opinion of Steptoe
& Johnson, special FERC counsel for the Companies, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, to the effect
that:
(i) No consent, approval, authorization, order, registration
or qualification of or with the FERC is required for the issuance of
the Offered Units, the offer and sale of the Offered Units by the
Partnership or the execution, delivery and performance of this
Agreement.
(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) You shall have received on the Closing Date an opinion of McCarthy
Tetrault, Canadian counsel to Enbridge, dated the Closing Date and addressed to
you, as Representatives of the several Underwriters, to the effect that:
(i) No consent, approval, authorization, order, registration
or qualification of or with, any governmental agency or other
governmental instrumentality of Canada or any province thereof having
jurisdiction over any of the Companies or Enbridge is required for the
issuance and sale of the Offered Units as contemplated by the Final
Prospectus.
(ii) To the best of such counsel's knowledge, there is no
litigation or governmental proceeding to which Enbridge 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.
(i) You shall have received on the Closing Date an opinion of Baker &
Botts, L.L.P., counsel for the Underwriters, dated the Closing Date, with
respect to the matters referred to in clauses (i), (vi), (vii), (viii), (ix) and
(xii)(but only with respect to the Registration Statement and
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<PAGE> 25
the Final Prospectus and any supplements or amendments thereto) of the foregoing
paragraph (d) and such other related matters as the Underwriters may request.
(j) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date from PricewaterhouseCoopers LLP, independent accountants,
substantially in the forms heretofore approved by you.
(k) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of any of the Companies shall
be threatened by the Commission at or prior to the Closing Date; (ii) there
shall not have been any change in the capitalization of the Partnership nor any
material increase in the short-term or long-term debt of the Partnership (other
than in the ordinary course of business) from that set forth or contemplated in
the Registration Statement or the 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 Date as if made on and
as of the Closing Date, and you, as Representatives of the several Underwriters,
shall have received a certificate, dated the Closing Date and signed by the
chief executive officer and the chief financial officer of the General Partner
(or such other officers as are acceptable to you), to the effect set forth in
this Section 8(k) and in Section 8(l) hereof.
(l) None of the Companies shall have failed at or prior to the
Closing Date to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder at or
prior to the Closing Date.
(m) Prior to commencement of the offering of the Offered Units, such
Units shall have been listed, subject to official notice of issuance, on the New
York Stock Exchange.
(n) Each of the Partnership and the General Partner shall have
furnished or caused to be furnished to you, as Representatives of the several
Underwriters, such further certificates and documents as you shall have
reasonably requested that are customary in closing transactions of the nature
contemplated by this Agreement.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and 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 you, as Representatives of
25
<PAGE> 26
the several Underwriters, or to counsel for the Underwriters, shall be deemed a
representation and warranty by the Companies to each Underwriter as to the
statements made therein.
The several obligations of the Underwriters to purchase Additional Units
hereunder are subject to the satisfaction on and as of any Option Closing Date
of the conditions set forth in this Section 8, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (c) through (n) shall be dated the Option
Closing Date in question and the opinions called for by paragraphs (c), (d),
(e), (f), (g), (h) and (i) shall be revised to reflect the sale of Additional
Units.
9. Expenses. The Companies agree to pay the following costs and expenses
and all other costs and expenses incident to the performance by them of their
obligations hereunder: (i) the preparation, printing or reproduction, and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), 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 Offered Units; (iii) the preparation, printing,
authentication, issuance and delivery of the Offered Units; (iv) the printing
(or reproduction) and delivery of this Agreement, any Agreement among
Underwriters, the preliminary and supplemental Blue Sky Memoranda and all other
agreements or documents printed (or reproduced) and delivered in connection with
the offering of the Offered Units; (v) the listing of the Offered Units on the
New York Stock Exchange; (vi) the registration or qualification of the Offered
Units for offer and sale under the securities or Blue Sky laws of the several
states as provided in Section 5(g) hereof (including the reasonable fees,
expenses and disbursements of counsel for the Underwriters relating to the
preparation, printing or reproduction, and delivery of the preliminary and
supplemental Blue Sky Memoranda and such registration and qualification); (vii)
the filing fees and the fees and expenses of counsel for the Underwriters in
connection with any filings required to be made with the National Association of
Securities Dealers, Inc.; (viii) the transportation and lodging expenses
incurred by or on behalf of representatives of the Companies in connection with
presentations to prospective purchasers of the Offered Units; (ix) the fees and
expenses of the accountants for the Companies; (x) the fees and expenses of
counsel (including local and special counsel) for the Companies; and (xi) any
fees payable to DTC in connection with the Offered Units being book-entry only
securities.
10. Effective Date of Agreement. This Agreement shall become effective:
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
Registration Statement or a post-effective amendment thereto to be declared
effective before the offering of the Offered Units may commence, when
notification of the effectiveness of the Registration Statement or such
post-effective amendment has been given by the Commission. Until such time as
this Agreement shall have become effective, it may be terminated by the General
Partner, on behalf of the Companies, by notifying you, or by you, as
26
<PAGE> 27
Representatives of the several Underwriters, by notifying the General Partner,
on behalf of the Companies.
If any one or more of the Underwriters shall fail or refuse to purchase
Offered Units which it or they are obligated to purchase hereunder on the
Closing Date, and the aggregate number of Units which such defaulting
Underwriter or Underwriters are obligated but fail or refuse to purchase is not
more than one-tenth of the aggregate number of the Offered Units which the
Underwriters are obligated to purchase on the Closing Date, each non-defaulting
Underwriter shall be obligated, severally, in the proportion which the number of
Firm Units set forth opposite its name in Schedule I hereto bears to the
aggregate number of Firm Units set forth opposite the names of all
non-defaulting Underwriters or in such other proportion as you may specify in
accordance with Section 20 of the Master Agreement Among Underwriters of Salomon
Smith Barney Inc., to purchase the Offered Units which such defaulting
Underwriter or Underwriters are obligated, but fail or refuse, to purchase. If
any one or more of the Underwriters shall fail or refuse to purchase Offered
Units which it or they are obligated to purchase on the Closing Date and the
aggregate number of Offered Units with respect to which such default occurs is
more than one-tenth of the aggregate number of Offered Units which the
Underwriters are obligated to purchase on the Closing Date and arrangements
satisfactory to you and the Partnership for the purchase of such Offered Units
by one or more non-defaulting Underwriters or other party or parties approved by
you and the Partnership are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of any party hereto
(other than the defaulting Underwriter). In any such case which does not result
in termination of this Agreement, either you or the Partnership shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and
the Prospectus or any other documents or arrangements may be effected. If any
one or more of the Underwriters shall fail or refuse to purchase Additional
Units which it or they are obligated to purchase hereunder on the Option Closing
Date, each non-defaulting Underwriter shall be obligated, severally, in the
proportion which the number of Firm Units set forth opposite its name in
Schedule I hereto bears to the aggregate number of Firm Units set forth opposite
the names of all non-defaulting Underwriters or in such other proportion as you
may specify in accordance with Section 20 of the Master Agreement Among
Underwriters of Salomon Smith Barney Inc., to purchase the Additional Units
which such defaulting Underwriter or Underwriters are obligated, but fail or
refuse, to purchase. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any such default of any such
Underwriter under this Agreement. The term "Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Partnership,
purchases Offered Units which a defaulting Underwriter is obligated, but fails
or refuses, to purchase.
Any notice under this Section 10 may be made by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Companies by notice to
27
<PAGE> 28
the General Partner, on behalf of the Companies, if prior to the Closing Date or
any Option Closing Date (if different from the Closing Date and then only as to
the Additional Units), as the case may be; (i) 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
Units 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 your judgment, impracticable or inadvisable to commence or continue the
offering of the Offered Units on the terms set forth on the cover page of the
Final Prospectus or to enforce contracts for the resale of the Offered Units by
the Underwriters. Notice of such termination shall be promptly given to the
General Partner, on behalf of the Companies, by telegram, telecopy or telephone
and shall be subsequently confirmed by letter.
12. Information Furnished by the Underwriters. The statements set forth in
the last paragraph on the cover page and the statements in the first, third,
seventh, ninth, tenth, eleventh and thirteenth paragraphs 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 Suite 400, Lake Superior Place, 21 West Superior Street,
Duluth, Minnesota 55802, Attention: Susan Lenczewski, Secretary; or (ii) if to
you, as Representatives of the several Underwriters, care of Salomon Smith
Barney Inc., 388 Greenwich Street, New York, New York 10013, Attention: Manager,
Investment Banking Division.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Companies, the directors and officers of the General Partner,
and the other controlling persons referred to in Section 7 hereof and their
respective successors and assigns, to the extent provided herein, and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" nor the term "successors and assigns" as used in
this Agreement shall include a purchaser from any Underwriter of any of the
Offered Units in his status as such purchaser.
14. Applicable Law; Counterparts. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
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<PAGE> 29
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 Offered Units to the
Underwriters.
16. NASD Rules of Fair Practice. As the National Association of Securities
Dealers, Inc. ("NASD") views the Offered Units as interests in a direct
participation program, each Underwriter agrees that it will offer the Offered
Units in compliance with Rule 2810 of the NASD's Conduct Rules.
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<PAGE> 30
Please confirm that the foregoing correctly sets forth the agreement among
the Partnership, the Operating Partnership, the General Partner and the several
Underwriters.
Very truly yours,
LAKEHEAD PIPE LINE PARTNERS, L.P.
By: Lakehead Pipe Line Company, Inc.
General Partner
By: /s/ R. C. Sandahl
-------------------------------------
Name: Richard C. Sandahl
------------------------------
Title: Vice President
------------------------------
LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP
By: Lakehead Pipe Line Company, Inc.
General Partner
By: /s/ R. C. Sandahl
-------------------------------------
Name: Richard C. Sandahl
------------------------------
Title: Vice President
------------------------------
LAKEHEAD PIPE LINE COMPANY, INC.
By: /s/ R. C. Sandahl
-------------------------------------
Name: Richard C. Sandahl
------------------------------
Title: Vice President
------------------------------
30
<PAGE> 31
Confirmed as of the date first above
mentioned on behalf of themselves and
the other several Underwriters named in
Schedule I hereto.
SALOMON SMITH BARNEY INC.
GOLDMAN, SACHS & CO.
PAINEWEBBER INCORPORATED
As Representatives of the Several Underwriters
By: SALOMON SMITH BARNEY INC.
By: /s/ Andrew Safran
-------------------------------------
Managing Director
31
<PAGE> 32
SCHEDULE I
<TABLE>
<CAPTION>
Name of Underwriter Number of Firm Units
------------------- --------------------
<S> <C>
Salomon Smith Barney Inc. ................................ 726,670
Goldman, Sachs & Co. ..................................... 726,665
PaineWebber Incorporated ................................. 726,665
CIBC Oppenheimer Corp. ................................... 130,000
A.G. Edwards & Sons, Inc. ................................ 130,000
Lehman Brothers Inc. ..................................... 130,000
NationsBanc Montgomery Securities LLC .................... 130,000
---------
2,700,000
</TABLE>
Sch I-1
<PAGE> 1
EXHIBIT 99.1
For Immediate Release
April 22, 1999
LAKEHEAD PIPE LINE PARTNERS, L.P.
ANNOUNCES PRICING OF 2.7 MILLION ADDITIONAL CLASS A COMMON UNITS
(Duluth, Minnesota, April 22, 1999) Lakehead Pipe Line Partners, L.P.
(NYSE: LHP) today announced the signing of an underwriting agreement for the
issuance and sale by the Partnership of 2.7 million additional Class A Common
Units at a public offering price of $46.00 per unit. Salomon Smith Barney Inc.,
Goldman, Sachs & Co., and PaineWebber Incorporated are the managing underwriters
for the offering.
Proceeds from this offering will be used to repay existing bank
indebtedness that was drawn to fund a portion of the cost of the Partnership's
expansion programs -- SEP II and Terrace. The SEP II expansion program, which
provides additional capacity from Superior, Wisconsin to Chicago, Illinois, was
substantially completed during the first quarter of this year and complements a
recently completed expansion of the pipeline system in Canada by Enbridge Inc.,
(Toronot, Montreal: ENB), the ultimate parent of Lakehead Pipe Line Company,
Inc., the Partnership's general partner. Terrace is a multi-stage expansion
program that the Partnership is undertaking in conjunction with Enbridge. The
first phase of Terrace is expected to provide an additional 170,000 barrels per
day of heavy crude oil capacity from the Canadian border to Superior by
September 1999.
Copies of the final prospectus relating to these securities may be obtained
from Salomon Smith Barney Inc., 388 Greenwich Street, New York, NY 10013, (212)
816-6000. Any offering shall be made only by means of a final prospectus. This
press release shall not constitute an offer to sell or the solicitation of an
offer to buy, nor shall there be any sale in any state in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such state.
Lakehead Pipe Line Partners, L.P. owns the United States portion of the
world's longest liquid petroleum pipeline. Lakehead Pipe Line Company, Inc.
holds a 16.6% interest in the Partnership. The Partnership's Class A Common
Units are traded on the New York Stock Exchange under the symbol "LHP." Enbridge
Inc. common shares are traded on the Toronto and Montreal stock exchanges under
the symbol "ENB" and on the NASDAQ under the symbol "ENBRF."
