Exhibit 1.1
4,000,000 Class A
Common Units
ENBRIDGE ENERGY PARTNERS, L.P.
Representing Class A Limited Partner Interests
UNDERWRITING
AGREEMENT
February 27, 2008
Citigroup Global Markets Inc.
Morgan Stanley & Co.
Incorporated
Wachovia Capital Markets, LLC
c/o
Citigroup Global Markets Inc.
388
Greenwich Street
New
York, New York 10013
Ladies and Gentlemen:
Enbridge Energy 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 4,000,000 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 600,000 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, Class B Common Unit, Class C Common Unit
and i-unit representing limited partner interests in the
Partnership outstanding on the date hereof are hereinafter
sometimes collectively referred to as the “ Units
.”
The
Partnership wishes to confirm as follows its agreement with the
Underwriters in connection with their several purchases of the
Offered Units. The Partnership, Enbridge Energy, Limited
Partnership, a Delaware limited partnership and subsidiary of the
Partnership (the “ Operating Partnership ”),
Enbridge Energy Company, Inc., a Delaware corporation (both in its
capacity as general partner of the Partnership and in its
individual capacity, the “ General Partner ”),
and Enbridge Energy Management, L.L.C., a Delaware limited
liability company (“ Enbridge Management ”), are
sometimes collectively referred to herein as the “
Companies .”
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. 333-131076) under the Act, and such registration
statement has become effective under the Act. As used in this
Agreement, “ Applicable Time ” means 8:35 A.M.
(New York City time) on the date of this Agreement; “
Effective Date ” means any date as of which any part
of such registration statement relating to the offering of the
Offered Units became, or is
deemed to have become, effective under the Act
in accordance with the rules and regulations thereunder; “
Issuer Free Writing Prospectus ” means each
“free writing prospectus” (as defined in Rule 405 under
the Act) prepared by or on behalf of the Partnership or used or
referred to by the Partnership in connection with the offering of
the Offered Units; “ Preliminary Prospectus ”
means, as of the Applicable Time, the base prospectus comprising a
part of the Registration Statement and the preliminary supplement
to the base prospectus, subject to completion, relating to the
issuance of the Offered Units; “ Pricing Disclosure
Package ” means, as of the Applicable Time, the
Preliminary Prospectus together with each Issuer Free Writing
Prospectus filed with the Commission by the Partnership on or
before the Applicable Time and the number of Firm Units and price
to the public set forth on Schedule II hereto; “
Registration Statement ” means, collectively, the
various parts of such registration statement, each as amended as of
the Effective Date for such part, including the Pricing Disclosure
Package and the Final Prospectus and all exhibits to such
registration statement; and the “ Final Prospectus
” means the final prospectus supplement relating to the
Offered Units, including the accompanying base prospectus, as filed
with the Commission pursuant to Rule 424(b) under the
Act.
Reference made herein to the Pricing Disclosure
Package or to the Final Prospectus shall be deemed to refer to and
include any information incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Act, as of the date of the Pricing
Disclosure Package or the Final Prospectus, as the case may be, and
any reference to any amendment or supplement to the Pricing
Disclosure Package or the Final Prospectus shall be deemed to refer
to and include any document filed under the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “ Exchange
Act ”), after the date of the Pricing Disclosure Package
or the Final Prospectus, as the case may be, and incorporated by
reference in, or otherwise deemed by the rules and regulations
under the Act to be a part of and included in, the Pricing
Disclosure Package or the Final Prospectus, as the case may be; and
any reference to any amendment to the Registration Statement shall
be deemed to include any periodic report of the Partnership filed
with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act after the Effective Date that is incorporated by
reference in the Registration Statement. As used herein, the term
“ Incorporated Documents ” means the documents
that at the time are incorporated by reference in, or otherwise
deemed by the rules and regulations under the Act to be a part of
and included in, the Registration Statement, the Pricing Disclosure
Package 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 the Underwriters and, upon the basis
of the representations, warranties and agreements of the
Partnership 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 $47.285 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 Partnership 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
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at
the Purchase Price Per Unit, pursuant to an option (the “
over-allotment option ”) that 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 600,000 Additional Units.
Additional Units may be purchased only for the purpose of covering
over-allotments made in connection with the offering of the Firm
Units. Upon any exercise of the over-allotment option, each
Underwriter, severally and not jointly, agrees to purchase from the
Partnership the number of Additional Units (subject to such
adjustments as you may determine in order to avoid fractional
Units) that 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 Firm
Units.
3.
Terms of Public Offering . The Partnership has been advised
by you that the Underwriters have commenced a public offering of
the Offered Units on the date of this Agreement and initially will
make sales of their respective portion of the Offered Units on the
terms set forth in the Pricing Disclosure Package.
4.
Delivery of the Offered Units and Payment Therefor .
(a) The Offered Units to be purchased hereunder will be
represented by one or more definitive global certificates in
book-entry form that will be deposited by or on behalf of the
Partnership with The Depository Trust Company (“ DTC
”) or its designated custodian.
(b)
Delivery to the Underwriters of the Firm Units, against payment of
the purchase price therefor in immediately available funds to a
bank account designated by the Partnership, shall be made by
causing DTC to credit the Firm Units to the account or accounts
designated by Citigroup Global Markets Inc. on behalf of the
Underwriters at DTC. The time and date of such delivery shall be
9:30 A.M., New York City time, on March 3, 2008 (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 Street, 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.
(c)
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 Citigroup Global Markets 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.
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(d)
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.
(e)
It is understood that each underwriter has authorized Citigroup
Global Markets, Inc. for its own account, to accept delivery of,
receipt for, and make payment for the purchase price of the Offered
Units that it has agreed to purchase.
5.
Agreements of the Partnership . The Partnership 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, a post-effective
amendment thereto or a new registration statement relating to the
Offered Units to be declared effective before the offering of the
Offered Units may commence, the Partnership will endeavor to cause
the Registration Statement, such post-effective amendment or such
new registration statement 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, such post-effective amendment or such new
registration statement has become effective.
(b)
Following the execution and delivery of this Agreement and
thereafter from time to time during 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 the Underwriters or any
dealer (the “ Prospectus Delivery Period ”), the
Partnership 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 Pricing Disclosure
Package 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 preventing or
suspending the use of the Pricing Disclosure Package, the Final
Prospectus or any Issuer Free Writing Prospectus or of any
examination by the Commission pursuant to Section 8(e) of the
Act concerning the Registration Statement of which the Partnership
is aware 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; (iii) if the Partnership receives
notice that it has become the subject of a proceeding under
Section 8A of the Act in connection with the offering of the
Offered Units; and (iv) 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, that makes any
statement of a material fact made in the Registration Statement,
the Pricing Disclosure Package or the Final Prospectus (as then
amended or supplemented) untrue or that requires the making of any
additions to or changes in the Registration Statement, the Pricing
Disclosure Package 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 Registration Statement, the Pricing Disclosure Package or the
Final Prospectus (as then amended or supplemented) to comply with
the Act or any other law. If at any time within the Prospectus
Delivery Period, the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement or
preventing or suspending the use of the Pricing
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Disclosure Package, the Final Prospectus or any
Issuer Free Writing Prospectus, the Partnership will make every
reasonable effort to obtain the withdrawal of such order at the
earliest possible time.
(c)
The Partnership will furnish to you, at your request and without
charge, (i) one conformed 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, (iv) such number of copies of the exhibits to the
Incorporated Documents and the Pricing Disclosure Package as you
may request, and (v) such number of copies of the Preliminary
Prospectus, the Final Prospectus, any amended or supplemented Final
Prospectus and each Issuer Free Writing Prospectus as you may
request.
(d)
During the Prospectus Delivery Period, the Partnership will not
file any amendment to the Registration Statement or make any
amendment or supplement to the Final Prospectus or, file any
document that, 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)
The Partnership will not make any offer relating to the Offered
Units that would constitute an Issuer Free Writing Prospectus
without the prior written consent of the Underwriters. The
Partnership will retain in accordance with the Act all Issuer Free
Writing Prospectuses not required to be filed pursuant to the Act;
and if at any time after the date hereof through the completion of
the offering of the Offered Units any events shall have occurred as
a result of which any Issuer Free Writing Prospectus, as then
amended or supplemented, would conflict with the information in the
Registration Statement, the Pricing Disclosure Package or the Final
Prospectus or would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, or, if for any other reason it
shall be necessary to amend or supplement any Issuer Free Writing
Prospectus, to notify the Underwriter and, upon its request, to
file such documents and to prepare and furnish without charge to
the Underwriter as many copies as it may from time to time
reasonably request of an amended or supplemented Issuer Free
Writing Prospectus, that will correct such conflict, statement or
omission or effect such compliance.
(f)
The Partnership will cause the Final Prospectus to be filed
pursuant to, and in compliance with, Rule 424(b). The Partnership
will pay to the Commission the registration fee associated with the
offering of the Offered Units within the time period required by
Rule 456(b)(i) under the Act and otherwise in accordance with
Rules 456(b) and 457(r) under the Act. As soon as practical
following the execution and delivery of this Agreement and until
the end of the Prospectus Delivery Period, the Partnership will
expeditiously deliver to the Underwriters 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 consents
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to
the use of 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 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 the Underwriters or any
dealer. If during such period of time any event shall occur that in
the judgment of the Partnership 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 that, upon filing, becomes
an Incorporated Document) in order to comply with the Act or any
other law, the Partnership 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 and the Underwriters agree that the Final Prospectus
should be amended or supplemented, the Partnership, 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 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 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
that 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 will make generally available to security holders
of the Partnership a consolidated earnings statement, which need
not be audited, covering a 12-month period commencing after the
effective date of the Registration Statement and ending not later
than 15 months thereafter, as soon as practicable after the end of
such period, which consolidated earnings statement shall satisfy
the provisions of Section 11(a) of the Act.
(i)
If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than
pursuant to Section 10 hereof or pursuant to clause (ii), (iii),
(iv) or (v) of Section 11 hereof) or if this Agreement shall be
terminated by the Underwriters because of any failure or refusal on
the part of the Partnership to comply with the terms or fulfill any
of the conditions of this Agreement, the Partnership agrees 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.
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(k)
Except as provided in this Agreement, none of the Companies 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 60 days after the date of the Final Prospectus, without the
prior written consent of Citigroup Global Markets, Inc., Morgan
Stanley & Co. Incorporated and Wachovia Capital Markets, LLC
(collectively, the “Representatives”); provided,
however , the foregoing restriction shall not apply to
either (i) an automatic increase in the number of i-units
outstanding and owned by Enbridge Management, (ii) the distribution
of additional shares representing limited liability company
interests in Enbridge Management to the owners of Enbridge
Management shares, upon the occurrence of a regular quarterly cash
distribution by the Partnership on its Class A Common Units and
Class B Common Units, or (iii) the distribution of additional Class
C Units to the holders of Class C Units upon the occurrence of a
regular quarterly cash distribution by the Partnership on its Class
A Common Units and Class B Common Units.
(l)
Except as stated in this Agreement and in 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 any securities of the Partnership to facilitate the sale
or resale of the Offered Units.
(m)
The Partnership, during the Prospectus Delivery Period, 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.
(n)
The Partnership hereby acknowledges that the Underwriters are
acting solely as underwriters in connection with the purchase and
sale of the Partnership’s securities. The Partnership further
acknowledges that the Underwriters are acting pursuant to a
contractual relationship created solely by this Agreement entered
into on an arm’s length basis and in no event do the parties
intend that the Underwriters act or be responsible as a fiduciary
to any of the Companies, their management, stockholders, creditors
or any other person in connection with any activity that the
Underwriters may undertake or have undertaken in furtherance of the
purchase and sale of the Partnership’s securities, either
before or after the date hereof. The Underwriters hereby expressly
disclaim any fiduciary or similar obligations to any of the
Companies, either in connection with the transactions contemplated
by this Agreement or any matters leading up to such transactions,
and the Partnership hereby confirms its understanding and agreement
to that effect. The Partnership and the Underwriters agree that
they are each responsible for making their own independent
judgments with respect to any such transactions and that any
opinions or views expressed by the Underwriters to any of the
Companies regarding such transactions, including but not limited to
any opinions or views with respect to the price or market for the
Partnership’s securities, do not constitute advice or
recommendations to any of the Companies. The Partnership hereby
waives and releases, to the fullest extent permitted by law, any
claims that the Partnership may have against the Underwriters with
respect to any breach or alleged breach of any fiduciary or similar
duty to any of the Companies in connection with the transactions
contemplated by this Agreement or any matters leading up to such
transactions.
(o)
The Partnership hereby acknowledges that the Underwriters’
research analysts and research departments are required to be
independent from their respective
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investment banking divisions and are subject to
certain regulations and internal policies, and that such
Underwriters’ research analysts may hold and make statements
or investment recommendations and/or publish research reports with
respect to the Partnership and/or the offering of the Offered Units
that differ from the views of its investment bankers. The
Partnership acknowledges that each of the Underwriters is a full
service securities firm and as such from time to time, subject to
applicable securities laws, may effect transactions for its own
account or the account of its customers and hold long or short
positions in debt or equity securities of one or more of the
Companies that may be the subject of the transactions contemplated
by t his Agreement.
(p)
The Partnership will use its 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.
(q)
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 Fourth Amended
and Restated Agreement of Limited Partnership of the Partnership,
dated as of August 15, 2006, as amended to date (the “
Partnership Agreement ”).
6.
Representations and Warranties of the Partnership . The
Partnership represents and warrants to each Underwriter that:
(a)
The Registration Statement conformed and will conform in all
material respects on the most recent Effective Date and on the
applicable Closing Date, and any amendment to the Registration
Statement filed after the date hereof will conform in all material
respects when filed, to the requirements of the Act. The Pricing
Disclosure Package conformed, and the Final Prospectus will
conform, in all material respects when filed with the Commission
pursuant to Rule 424(b) and on the applicable Closing Date to the
requirements of the Act. The Registration Statement did not, as of
the most recent Effective Date, 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 document
that are covered by Rule 175(b) under the Act were made or will be
made with a reasonable basis and in good faith; provided that this representation and
warranty does not apply to information contained in or omitted from
such document in reliance upon and in conformity with written
information furnished to the Partnership in writing by or on behalf
of any Underwriter expressly for use therein, which information is
specified in Section 12 hereof. The Final Prospectus will not, as
of its date and on the applicable Closing Date, contain an untrue
statement of a material fact or omit 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;
provided that this
representation and warranty does not apply to information contained
in or omitted from the Final Prospectus in reliance upon and in
conformity with written information furnished to the Partnership in
writing by or on behalf of any Underwriter expressly for use
therein, which information is specified in Section 12 hereof.
(b)
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
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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 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 to make
the statements therein not misleading.
(c)
The Pricing Disclosure Package did not, as of the Applicable Time,
contain an untrue statement of a material fact or omit 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; provided that
no representation or warranty is made as to information contained
in or omitted from the Pricing Disclosure Package in reliance upon
and in conformity with written information furnished to the
Partnership through the Underwriter specifically for inclusion
therein, which information is specified in Section 12 hereof.
(d)
Each Issuer Free Writing Prospectus (including, without limitation,
any road show that is a free writing prospectus under Rule 433),
when considered together with the Pricing Disclosure Package as of
the Applicable Time, did not contain an untrue statement of a
material fact or omit 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. Each Issuer Free
Writing Prospectus, as of its date and at all subsequent times
through the completion of the issuance of the Offered Units, did
not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the
Registration Statement, the Pricing Disclosure Package or the Final
Prospectus.
(e)
Each Issuer Free Writing Prospectus conformed or will conform in
all material respects to the requirements of the Act on the date of
first use, and the Partnership has complied with any filing
requirements applicable to such Issuer Free Writing Prospectus
pursuant to the Act. The Partnership has not made any offer
relating to the Offered Units that would constitute an Issuer Free
Writing Prospectus without the prior written consent of the
Underwriter. The Partnership has retained in accordance with the
Act all Issuer Free Writing Prospectuses that were not required to
be filed pursuant to the Act.
(f)
The Partnership has been at all times since December 1, 2005 and
continues to be a “well-known seasoned issuer” (as
defined in Rule 405 under the Act) eligible to use an
“automatic shelf registration statement” (as defined in
Rule 405 under the Act) for the registration of the Offered Units,
including not having been an “ineligible issuer” (as
defined in Rule 405 under the Act) at any such time or date. The
Partnership has not received from the Commission any notice
pursuant to Rule 401(g)(2) under the Act objecting to the use of
the form of automatic shelf registration statement (as defined in
Rule 405 under the Act). To the knowledge of the Partnership, the
Registration Statement is not the subject of a pending proceeding
or examination under Section 8(d) or 8(e) of the Act, and the
Partnership is not the subject of a pending proceeding under
Section 8A of the Act in connection with the offering of the
Offered Units.
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(g)
The capitalization of the Partnership on a consolidated basis as of
December 31, 2007 was as set forth in the Preliminary
Prospectus under “Capitalization.”
(h)
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 nonassessable (except as
such nonassessability 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, Amendment No. 2 on Form
8-A/A, dated May 2, 1997, Amendment No. 3 on Form 8-A/A, dated
August 8, 2001 and Amendment No. 4 on Form 8-A/A, dated May 7, 2003
(as amended, 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) of the Partnership Agreement), and the Underwriters will
acquire such Units free and clear of any liens, encumbrances,
security interests, charges or claims.
(i)
The 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 Pricing
Disclosure Package and the Registration Statement. The Partnership,
directly or indirectly, owns the percentage of the equity interests
of each of the subsidiaries listed on Schedule IIIA hereto
(the “ Operating Subsidiaries ”), free and clear
of any lien, encumbrance, security interest, equity or charge
except for such liens, security interests, equities or charges as
are not individually or in the aggregate, material to such
ownership interest or as described in the Pricing Disclosure
Package and the Registration Statement. Each of the Operating
Subsidiaries has been duly incorporated, formed or organized, as
the case may be, and is validly existing as a corporation, general
partnership, limited liability company or limited partnership, as
the case may be, in good standing under the laws of its respective
jurisdiction of incorporation, formation or organization set forth
on Schedule IIIA , with full corporate, limited liability
company or partnership, as the case may be, power and authority to
own or lease its properties and to conduct its business as
described in the Pricing Disclosure Package and the Registration
Statement. The common stock, limited liability company interests
and partnership interests, as the case may be, of the Operating
Subsidiaries have been duly and validly authorized and issued and
are fully paid and (except as required to the contrary by the
Delaware Limited Liability Company Act (the “ Delaware LLC
Act ”) or the Delaware Act, as the case may be)
nonassessable. The Operating Subsidiaries that are material to the
Partnership, including, without limitation, each Operating
Subsidiary that meets any of the following conditions
(collectively, the “ Material Subsidiaries ”)
are listed on Schedule IIIB hereto: (i) the
Partnership’s and its other subsidiaries’ investments
in and advances to such subsidiary exceed 10 percent of the
Partnership’s consolidated assets as of December 31, 2007;
(ii) the Partnership’s and its other subsidiaries’
proportionate share of the consolidated assets (after intercompany
eliminations) of such subsidiary exceeds 10 percent of the
Partnership’s consolidated assets as of December 31, 2007; or
(iii) the Partnership’s and its other subsidiaries’
equity in the income from continuing operations before income taxes
and extraordinary items of
10
such subsidiary exceeds 10 percent of such
income of the Partnership and its subsidiaries, on a consolidated
basis, for the year ended December 31, 2007.
(j)
The General Partner has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with the corporate power and authority to own or
lease its properties, to conduct its businesses and to act as a
general partner of the Partnership, in each case as described in
the Pricing Disclosure Package and the Registration Statement. The
General Partner owns the sole voting share of Enbridge Management.
The sole voting share of Enbridge Management has been duly and
validly authorized and issued and is fully paid and (except as
required to the contrary by the Delaware LLC Act or the Delaware
Act), nonassessable. The General Partner is the sole general
partner of the Partnership, and the General Partner’s
ownership of the Partnership is as set forth in the Preliminary
Prospectus under the heading “Prospectus Supplement
Summary—Organizational Structure.” Except as
described in the Pricing Disclosure Package or as set forth in the
Partnership Agreement or the Delegation of Control Agreement, dated
as of October 17, 2002, among the General Partner, Enbridge
Management and the Partnership, the General Partner has delegated
all of its power to manage and control the business and affairs of
the Partnership to Enbridge Management.
(k)
Enbridge Management has been duly formed and is validly existing as
a limited liability company in good standing under the laws of the
State of Delaware, with full limited liability company power and
authority to own or lease its properties and to conduct its
business as described in the Pricing Disclosure Package and the
Registration Statement.
(l)
PricewaterhouseCoopers LLP, which has certified or shall certify
the financial statements included or incorporated by reference in
the Registration Statement, Pricing Disclosure Package and the
Final Prospectus, is an independent registered public accounting
firm as required by the Act.
(m)
The historical financial statements, together with related
schedules and notes, included or incorporated by reference in the
Registration Statement and the Pricing Disclosure Package (and any
amendment or supplement thereto), present fairly the consolidated
financial position, results of operations and changes in financial
position of the Partnership on the basis stated in the Registration
Statement and the Pricing Disclosure Package at the respective
dates or for the respective periods to which they apply; such
statements and related schedules and notes comply as to form in all
material respects with the applicable accounting requirements of
the Act, the Exchange Act and the rules and regulations of the
Commission under such acts, and have been prepared in accordance
with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and
the other summary and selected financial and statistical
information and data included or incorporated by reference in the
Registration Statement and the Pricing Disclosure Package (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; and any pro forma financial
statements included in or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the
Final Prospectus, comply as to form in all material respects with
the applicable accounting requirements of the Act, the Exchange Act
and
11
the
rules and regulations of the Commission under such acts, and except
to the extent stated therein have been prepared on a basis
consistent with the historical consolidated financial statements of
the Partnership and give effect to the assumptions used in the
preparation thereof on a reasonable basis and in good faith. There
are no financial statements (historical or pro forma) that are
required to be included in the Registration Statement and the
Pricing Disclosure Package that are not included as required; and
the Companies and the Operating Subsidiaries do not have any
material liabilities or obligations, direct or contingent
(including any off-balance sheet obligations), not disclosed in the
Registration Statement and the Pricing Disclosure Package. The
Companies have provided you true, correct, and complete copies of
all documentation pertaining to any extension of credit in the form
of a personal loan made, directly or indirectly, by the Companies
to any director or executive officer of the General Partner or
Enbridge Management, or to any family member or affiliate of any
director or executive officer of the General Partner or Enbridge
Management; and since July 30, 2002, the Companies have not,
directly or indirectly, including through any subsidiary: (i)
extended credit, arranged to extend credit, or renewed any
extension of credit, in the form of a personal loan, to or for any
director or executive officer of the General Partner or Enbridge
Management, or to or for any family member or affiliate of any
director or executive officer of the General Partner or Enbridge
Management; or (ii) made any material modification, including any
renewal thereof, to any term of any personal loan to any director
or executive officer of the General Partner or Enbridge Management,
or any family member or affiliate of any director or executive
officer, which loan was outstanding on July 30, 2002. There is and
has been no failure by the Companies, or any of the
Companies’ officers and directors, acting in their capacity
as such, to comply with any provision of the Sarbanes-Oxley Act of
2002, including the rules and regulations promulgated thereunder
(collectively, the “ Sarbanes-Oxley Act ”), or
the rules of the New York Stock Exchange that are effective and
applicable to the Companies.
(n)
The Partnership has all of the necessary partnership power and
authority to enter into this Agreement and consummate the
transactions contemplated hereby. The execution and delivery of,
and the performance by the Partnership of its obligations under
this Agreement have been duly and validly authorized by the
Partnership, and this Agreement has been duly executed and
delivered by the Partnership.
(o)
None of (i) the offer, sale or delivery of the Offered Units, (ii)
the execution, delivery or performance of this Agreement, (iii)
compliance by the Partnership with the provisions hereof or (iv)
consummation by the Partnership of the transactions contemplated
hereby constitutes or, at the Closing Date will result in or
constitute the imposition of any lien, charge or encumbrance upon
any property or assets of any of the Companies or any of the
Operating Subsidiaries, a breach of, or a default under, the
certificate of limited partnership of the Partnership or the
Partnership Agreement, or any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement
or instrument to which any of the Companies or the Operating
Subsidiaries is a party or by which any of them may be bound or to
which any of their respective properties is subject, or 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 Operating Subsidiaries is a named party,
excluding in each case any breaches, defaults or violations that,
individually or in the aggregate, would not have a material adverse
effect on the financial
12
position, results of operations, business or
prospects of the Companies and the Operating Subsidiaries (taken as
a whole) (a “ Material Adverse Effect
”).
(p)
Except as disclosed in the Registration Statement and the Pricing
Disclosure Package, subsequent to the respective dates as of which
such information is given in the Registration Statement and the
Pricing Disclosure Package, none of the Companies or the Operating
Subsidiaries 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 or the Companies and the Operating Subsidiaries (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 Effect, or any development that any of the Companies has
reasonable cause to believe will involve a prospective Material
Adverse Effect.
(q)
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 Pricing Disclosure Package, the Final
Prospectus and any Issuer Free Writing Prospectus to which the
Underwriters have consented.
(r)
Except as disclosed in the Registration Statement and the Pricing
Disclosure Package (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
Financial Industry Regulatory Authority (“ FINRA
”) or associated or affiliated persons of such members, or
members of the immediate family of such members.
(s)
The Registration Statement has become effective under the Act. No
other consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body
is required for the offering and sale of the Offered Units, or the
consummation by the Partnership of the transactions contemplated by
this Agreement, the Pricing Disclosure Package, the Final
Prospectus, except such consents, approvals, authorizations,
orders, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the offer by
the Partnership of the Offered Units
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