UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant To Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported) November 13, 2009
TC PipeLines,
LP
(Exact name of registrant as specified in its charter)
Delaware
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000-26091
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52-2135448
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(State or other jurisdiction
of incorporation)
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(Commission File
Number)
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(IRS Employer Identification No.)
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13710 FNB Parkway
Omaha, Nebraska
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68154-5200
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number, including area
code (877) 290-2772
(Former name or former address if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant
to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement
On
November 13, 2009, TC PipeLines, LP (the Partnership) entered into an
Underwriting Agreement with Citigroup Global Markets Inc., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated
and UBS Securities LLC, as representatives of the underwriters (the Underwriting
Agreement), that provides for the sale by the Partnership, and the purchase by
the underwriters, of 5,000,000 common units representing limited partnership
interests in the Partnership. The underwriters have the option to purchase up
to 750,000 additional common units on the same terms and conditions to the
extent more than 5,000,000 common units are sold in the offering. The common
units are registered under the Securities Act of 1933, as amended, pursuant to
a shelf registration statement on Form S-3 (File No. 333-156114). We
expect the transaction to close on Wednesday, November 18, 2009. A copy of
the Underwriting Agreement is filed as Exhibit 1.1 to this report and is
incorporated by reference herein.
Item 7.01. Regulation FD Disclosure
On
November 13, 2009, the Partnership issued a press release announcing the
pricing of the previously announced offering of 5,000,000 common units. A copy
of the press release is furnished with this report as Exhibit 99.1, and is
incorporated herein by reference.
The
information in this report is being furnished, not filed, pursuant to Item 7.01
of Form 8-K. Accordingly, the information in this report, including
the press release, will not be incorporated by reference into any registration
statement filed by the Partnership under the Securities Act of 1933, as
amended, unless specifically identified therein as being incorporated therein
by reference.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits
Exhibit
Number
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Description
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1.1
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Underwriting
Agreement, dated November 13, 2009, among TC PipeLines, LP, TC
PipeLines GP, Inc. and Citigroup Global Markets Inc., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Morgan
Stanley & Co. Incorporated, and UBS Securities LLC, as
Representatives of the Underwriters
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5.1
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Opinion
of Orrick, Herrington & Sutcliffe LLP
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8.1
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Opinion
of Orrick, Herrington & Sutcliffe LLP with respect to tax matters
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23.1
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Consent
of Orrick, Herrington & Sutcliffe LLP (included in Exhibits 5.1
and 8.1)
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99.1
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Press Release,
dated November 13, 2009
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SIGNATURES
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 hereunto duly
authorized.
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TC PipeLines, LP
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by: TC PipeLines
GP, Inc.,
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its general partner
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By:
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/s/ Rob Jacobucci
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Rob Jacobucci
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Controller and
Principal Financial Officer
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Dated: November 13, 2009
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Exhibit 1.1
Execution Version
TC PipeLines, LP
5,000,000 Common Units
Representing Limited Partner Interests
UNDERWRITING AGREEMENT
Citigroup
Global Markets Inc.
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November 13,
2009
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Merrill
Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
UBS Securities LLC
As
Representatives of the several
Underwriters
named in Schedule 1 attached hereto
c/o
Citigroup Global Markets Inc.
388
Greenwich Street
New
York, New York 10013
Ladies and Gentlemen:
TC PipeLines, LP, a Delaware
limited partnership (the Partnership),
proposes to sell to the several underwriters listed on Schedule 1 hereto
(the Underwriters) 5,000,000
Common Units (the Firm Units)
representing limited partner interests in the Partnership (the Common Units). In addition,
the Partnership proposes to grant to the Underwriters an option to purchase up
to an additional 750,000 Common Units, on the terms
and for the purposes set forth in Section 2 hereof (the Option Units). The
Firm Units and the Option Units, if purchased, are hereinafter collectively
referred to herein as the Units. Citigroup Global Markets Inc., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co.
Incorporated and UBS Securities LLC (the Representatives)
shall act as the representatives of the several Underwriters.
For purposes of this
Agreement, (i) TC PipeLines GP, Inc., a Delaware corporation (the General Partner), is a wholly owned subsidiary of
TransCanada PipeLines Limited, a Canadian corporation (TransCanada);
(ii) the General Partner is the general partner of the Partnership,
TC GL Intermediate Limited Partnership, a Delaware limited partnership (TCGL Intermediate Partnership), TC Tuscarora
Intermediate Limited Partnership, a Delaware limited partnership (TCT Intermediate Partnership), and TC PipeLines
Intermediate Limited Partnership, a Delaware limited partnership (TCP Intermediate Partnership and, together with TCGL
Intermediate Partnership and TCT Intermediate Partnership, the Intermediate Partnerships); (iii) the Partnership owns
all of the limited partner interests in each of the Intermediate Partnerships; (iv) TCGL Intermediate
Partnership owns a 46.45% general partner interest in Great Lakes Gas
Transmission Limited Partnership, a Delaware limited partnership (Great Lakes); (v) TCT Intermediate Partnership owns
(directly and indirectly) a 100% general partner interest in Tuscarora Gas
Transmission
Company,
a Nevada general partnership (Tuscarora);
and (vi) TCP Intermediate Partnership owns a 50% general partner interest
in Northern Border Pipeline Company, a Texas general partnership (NBPC), and a 100% membership interest in North Baja
Pipeline, LLC, a Delaware limited liability company (North Baja). The Partnership and the General Partner are collectively referred to herein as the TCP Parties. The
Partnership, the General Partner and the Intermediate Partnerships are
collectively referred to herein as the Partnership Entities. Certain terms used herein are defined in Section 21
hereof.
This is to confirm the
agreement among the TCP Parties and the Underwriters concerning the purchase of
the Firm Units and the Option Units from the Partnership by the Underwriters.
1. Representations and
Warranties. Each of the
TCP Parties, jointly and severally, represent and warrant to, and agree with,
each Underwriter as set forth below in this Section 1.
(a) Registration Statement. The Partnership
meets the requirements for use of Form S-3 under the Act and has prepared
and filed with the Commission a registration statement (file number 333-156114)
on Form S-3, including a related base prospectus dated December 24,
2008 for registration under the Act of the offering and sale of the Units. Such
Registration Statement, including any amendments thereto filed prior to the
Applicable Time, has become effective under the Act. The Partnership may have filed with the
Commission, as part of an amendment to the Registration Statement or pursuant
to Rule 424(b), one or more Preliminary Prospectuses, each of which has
previously been furnished to you. The
Partnership will file with the Commission, in accordance with Rule 424(b),
a final prospectus supplement relating to the Units and a related base
prospectus that will be part of the registration statement. As filed, such final prospectus supplement
shall contain all information required by the Act and the rules thereunder,
and, except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to you
prior to the Applicable Time or, to the extent not completed at the Applicable
Time, shall contain only such specific additional information and other changes
(beyond that contained in the Base Prospectus and any Preliminary Prospectus)
as the Partnership has advised you, prior to the Applicable Time, will be
included or made therein. The
Registration Statement, at the Applicable Time, meets the requirements set
forth in Rule 415(a)(1)(x). The
initial Effective Date of the Registration Statement was not more than three
years before the Applicable Time.
Any reference in this
Agreement to the Registration Statement, the Base Prospectus, any 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
that were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus, as the case may be; and any
reference to the terms amend, amendment or supplement with respect to the
Registration Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the
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Effective Date of the
Registration Statement or the issue date of the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to
be incorporated therein by reference.
(b) No Material Misstatement or Omission in
Final Prospectus or Registration Statement. On the Effective Date, the Registration
Statement did or will, and when the Final Prospectus is first filed in
accordance with Rule 424(b) and on the Closing Date (as defined
herein) and on any Option Closing Date (as defined herein) the Final Prospectus
(and any supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the Exchange Act and the respective rules thereunder;
on each Effective Date and at the Applicable Time, the Registration Statement
did not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; and, on the date of any filing pursuant to Rule 424(b) and
on the Closing Date and on any Option Closing Date, the Final Prospectus
(together with any supplement thereto) will not include any 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, however, that the TCP Parties
make no representations or warranties as to the information contained in or
omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Partnership by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto), it being
understood and agreed that the only such information furnished by or on behalf
of any Underwriters consists of the information described as such in Section 8(b) hereof. Each of the statements made by the
Partnership in such documents within the coverage of Rule 175(b) under
the Act, including (but not limited to) any statements with respect to the
anticipated ratio of taxable income to distributions, was made or will be made
with a reasonable basis and in good faith.
(c) Incorporated Documents Comply As to
Form. The
Incorporated Documents heretofore filed with the Commission, when they were
filed, conformed in all material respects to the requirements of the Exchange
Act and did not, as of the time each such document was filed, contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements made, in the light of the circumstances under
which they were made, not misleading.
Any further Incorporated Documents so filed will, when they are filed,
conform in all material respects to the requirements of the Exchange Act and
will not, as of the time each such document is filed, contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements made, in the light of the circumstances under
which they were made, not misleading.
(d) No Material Misstatement or Omission in
Pricing Disclosure Package. The Pricing Disclosure Package did not, as of the Applicable
Time, contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The preceding sentence does not apply to
statements in or omissions from
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the
Pricing Disclosure Package based upon and in conformity with written
information furnished to the Partnership by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 8(b) hereof.
(e) Not an Ineligible Issuer. (i) At
the earliest time after the filing of the Registration Statement that the
Partnership or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2)) and (ii) as of the
Applicable Time (with such date being used as the determination date for
purposes of this clause (ii)), the Partnership was not and is not an Ineligible
Issuer (as defined in Rule 405), without taking account of any
determination by the Commission pursuant to Rule 405 that it is not
necessary that the Partnership be considered an Ineligible Issuer.
(f) No Conflicts in Issuer Free Writing
Prospectus. Each Issuer Free Writing Prospectus, if any, does not
include any information that conflicts with the information contained in the
Registration Statement, including any document incorporated therein and any
prospectus supplement deemed to be a part thereof that has not been superseded
or modified. The foregoing sentence does
not apply to statements in or omissions from the Pricing Disclosure Package
based upon and in conformity with written information furnished to the
Partnership by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the information
described as such in Section 8(b) hereof.
(g) No Stop Order. Neither the Commission nor any state or other
jurisdiction or other regulatory body has issued, and, to the knowledge of the
TCP Parties, is threatening to issue, any stop order under the Act or other
order suspending the effectiveness of the Registration Statement (as amended or
supplemented) or preventing or suspending the use of any Preliminary Prospectus
or the Final Prospectus or suspending the qualification or registration of the
Units for offering or sale in any jurisdiction nor instituted or, to the
knowledge of the TCP Parties, threatened to institute proceedings for any such
purpose.
(h) Formation and Qualification of the TCP
Entities, Great Lakes and North Baja. Each of the TCP Entities, Great Lakes and
North Baja has been duly formed and is validly existing in good standing as a
corporation, limited partnership or limited liability company under the
Delaware General Corporation Law (DGCL),
the Delaware Revised Uniform Limited Partnership Act (DRULPA) or the Delaware Limited Liability
Company Act (Delaware LLC Act),
as the case may be, with full corporate or partnership power and authority to
own or lease its properties and to conduct the businesses in which it is
engaged, and, in the case of the General Partner, TC GL Intermediate
Partnership, TCP Intermediate Partnership and TCT Intermediate Partnership, to
act as the general partner of the Partnership and each of the Intermediate
Partnerships, Great Lakes, NBPC and North Baja, and Tuscarora, respectively, in
each case in all material respects as described in the Pricing Disclosure
Package and the Final Prospectus. Each
of the TCP Entities, Great Lakes and North Baja is or, at the Closing
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Date
and the Option Closing Date, as the case may be, will be duly registered or
qualified as a foreign corporation, limited partnership or limited liability
company, as the case may be, for the transaction of business under the laws of
each jurisdiction in which the character of the business conducted by it or the
nature or location of the properties owned or leased by it makes such
registration or qualification necessary, except where the failure so to
register or qualify would not (i) have a material adverse effect on the
condition (financial or otherwise), business, prospects, assets or results of
operations of the Partnership and its subsidiaries, taken as a whole (a Material Adverse Effect) or (ii) subject
the limited partners of the Partnership to any material liability or
disability.
(i) Formation and Qualification of NBPC and
Tuscarora. Each of NBPC and Tuscarora has been duly
formed and is validly existing as a general partnership under the laws of the
State of Texas and the laws of the State of Nevada, respectively, with full
partnership power and authority to own or lease its properties and to conduct
its businesses in which it is engaged, in each case in all material respects as
described in the Pricing Disclosure Package and the Final Prospectus. Each of NBPC and Tuscarora is or, at the
Closing Date and the Option Closing Date, as the case may be, will be duly
registered or qualified as a foreign general partnership for the transaction of
business under the laws of each jurisdiction in which the character of the
business conducted by it or the nature or location of the properties owned or
leased by it makes such registration or qualification necessary, except where
the failure so to register or qualify would not (i) have a Material
Adverse Effect or (ii) subject the limited partners of the Partnership to
any material liability or disability.
(j) Ownership of the General Partner Interests. The General Partner
is the sole general partner of the Partnership and each of the Intermediate
Partnerships with a 1.0% general partner interest in the Partnership and a
1.0101% general partner interest in each of the Intermediate Partnerships; such
general partner interests have been duly authorized and validly issued in
accordance with the partnership agreement of the Partnership, as amended to
date (the Partnership Agreement),
or the partnership agreements of each of the Intermediate Partnerships, each as
amended to date (collectively, the Intermediate
Partnership Agreements); and the General Partner owns such general
partner interests free and clear of all liens, encumbrances (except
restrictions on transferability as described in the Final Prospectus), security
interests or claims.
(k) Capitalization. As of the date
hereof, the issued and outstanding limited partner interests of the Partnership
consist of 41,227,766 Common Units and the Incentive Distribution Rights (as
defined in the Partnership Agreement, the Incentive
Distribution Rights). All
outstanding Common Units and Incentive Distribution Rights and the limited
partner interests represented thereby have been duly authorized and validly
issued in accordance with the Partnership Agreement and are fully paid (to the
extent required under the Partnership Agreement) and nonassessable (except as
such nonassessability may be affected by Section 17-607 of the DRULPA and
as otherwise disclosed in the Base Prospectus).
The Common Units and the Incentive Distribution Rights conform in all
material respects to the descriptions thereof contained in the Preliminary
Prospectus and the Final Prospectus.
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(l) Ownership of the Limited Partner Interests
in the Intermediate Partnerships. The Partnership owns a 98.9899% limited
partner interest in each of the Intermediate Partnerships; such limited partner
interests have been duly authorized and validly issued in accordance with the
applicable Intermediate Partnership Agreement and are fully paid (to the extent
required under the applicable Intermediate Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by Section 17-607
of the DRULPA); and the Partnership owns such limited partner interests free
and clear of all liens, encumbrances, security interests or claims.
(m) Ownership of Interest in Great Lakes. TC GL Intermediate
Partnership owns a 46.45% general partner interest in Great Lakes; such general
partner interest has been duly authorized and validly issued in accordance with
the agreement of limited partnership of Great Lakes, as amended to date (the Great Lakes Partnership Agreement); and
TCGL Intermediate Partnership owns such general partner interest free and clear
of all liens, encumbrances, security interests or claims.
(n) Ownership of Interest in NBPC. TCP Intermediate
Partnership owns a 50% general partner interest in NBPC; such general partner
interest has been duly authorized and validly issued in accordance with the
partnership agreement of NBPC, as amended to date (the NBPC Partnership Agreement); and TCP
Intermediate Partnership owns such general partner interest free and clear of
all liens, encumbrances, security interests or claims.
(o) Ownership of Interest in North Baja. TCP Intermediate
Partnership owns a 100% membership interest in North Baja; such membership
interest has been duly authorized and validly issued in accordance with the
limited liability agreement of North Baja, as amended to date (the North Baja LLC Agreement), and is fully
paid (to the extent required under the North Baja LLC Agreement) and
nonassessable (except as such nonassessability may be affected by the Delaware
LLC Act); and TCP Intermediate Partnership owns such membership interest free
and clear of all liens, encumbrances, security interests or claims.
(p) Ownership of Interest in Tuscarora. TCT Intermediate
Partnership owns (directly and indirectly through TC Pipelines Tuscarora LLC) a
100% general partner interest in Tuscarora; such general partner interest has
been duly authorized and validly issued in accordance with the partnership
agreement of Tuscarora, as amended to date (the Tuscarora Partnership Agreement); and TCT Intermediate
Partnership owns such general partner interest free and clear of all liens,
encumbrances, security interests or claims.
(q) No Other Subsidiaries. Other than (i) the
Partnerships ownership interest in the Intermediate Partnerships and (ii) the
Intermediate Partnerships ownership interests in each of Great Lakes (and its
subsidiary, GLGT Aviation Company), NBPC, North Baja, Tuscarora and TC
Pipelines Tuscarora LLC, as applicable, neither the Partnership nor the
Intermediate Partnerships own, directly or indirectly, any equity or long-term
debt securities of any corporation, partnership, limited liability company,
joint venture, association or other entity.
Other than its ownership of its partnership interests
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in the
Partnership and each of the Intermediate Partnerships, the General Partner does
not own, directly or indirectly, any equity or long-term debt securities of any
corporation, partnership, limited liability company, joint venture, association
or other entity.
(r) No Preemptive Rights, Registration Rights or
Options. Except as described in the Final Prospectus
and the Pricing Disclosure Package, there are no preemptive rights or other
rights to subscribe for or to purchase, nor any restriction upon the voting or
transfer of, any partnership or equity interests of the Partnership Entities,
in each case pursuant to the agreement or certificate of limited partnership,
the certificate of incorporation or other incorporation or organizational
documents (collectively, the Organizational
Documents) of any of the Partnership Entities, or any other
agreement or instrument to which any such entity is a party or by which any of
them may be bound. Neither the filing of
the Registration Statement nor the offering or sale of the Units as
contemplated by this Agreement gives rise to any rights for or relating to the
registration of any Units or other securities of the Partnership other than as
provided in the Final Prospectus, the Pricing Disclosure Package and the
Partnership Agreement. There are no
outstanding options or warrants to purchase any Common Units (except pursuant
to this Agreement).
(s) Authorization, Execution and Delivery of
Underwriting Agreement. This Agreement has been duly authorized,
validly executed and delivered by each of the TCP Parties.
(t) Enforceability of Other Agreements. The Organizational
Documents of each of the Partnership Entities, Great Lakes, NBPC, North Baja
and Tuscarora have been duly authorized, validly executed and delivered and are
valid and legally binding agreements, enforceable against the parties thereto
in accordance with their terms; provided that, with respect to each such
agreement, the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws relating to or
affecting creditors rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and, provided further, that the indemnity, contribution and
exoneration provisions contained in any of such agreements may be limited by
applicable laws and public policy.
(u) No Conflicts. None of the offering and sale by the
Partnership of the Units, the execution, delivery and performance of this
Agreement by the TCP Parties, or the consummation of the transactions
contemplated hereby or thereby by the TCP Parties (i) conflicts or will
conflict with or constitutes or will constitute a violation of the
Organizational Documents of the TCP Entities, Great Lakes, NBPC, North Baja or
Tuscarora, (ii) conflicts or will conflict with or constitutes or will
constitute a breach or violation of, or a default under (or an event that, with
notice or lapse of time or both, would constitute such a default), any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which any of the TCP Entities, Great Lakes, NBPC, North Baja or
Tuscarora is a party or by which any of them or any of their respective
properties may be bound, (iii) violates or will violate any statute, law
or regulation or any order, judgment, decree or injunction of any court or
governmental
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agency
or body directed to any of the TCP Entities, Great Lakes, NBPC, North Baja or
Tuscarora or any of their properties in a proceeding to which any of them or
their property is a party, or (iv) results or will result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
any of the TCP Entities, Great Lakes, NBPC, North Baja or Tuscarora, which
conflicts, breaches, violations, defaults or liens, in the case of clauses
(ii), (iii) or (iv), would, individually or in the aggregate, have a
Material Adverse Effect or would materially impair the ability of any of the
TCP Parties to perform their obligations under this Agreement.
(v) No Consents. No permit, consent, approval, authorization,
order, registration, filing or qualification (consent) of or with any court, governmental agency or body
having jurisdiction over any of the TCP Entities, Great Lakes, NBPC, North Baja
or Tuscarora or any of their respective properties is required in connection
with the offering and sale by the Partnership of the Units, the execution,
delivery and performance of this Agreement by the TCP Parties, or the
consummation by any of the TCP Parties of the transactions contemplated by this
Agreement, except for such consents required under the Act and state securities
or Blue Sky laws.
(w) No Default. None of the TCP Entities, Great Lakes, NBPC,
North Baja or Tuscarora is (i) in violation of its Organizational
Documents, (ii) in violation of any law, statute, ordinance,
administrative or governmental rule or regulation applicable to it or of
any order, judgment, decree or injunction of any court or governmental agency
or body having jurisdiction over it, or (iii) in breach, default (and no
event that, with notice or lapse of time or both, would constitute such a
default has occurred or is continuing) or violation in the performance of any
obligation, agreement or condition contained in any bond, debenture, note or
any other evidence of indebtedness or in any agreement, indenture, lease or
other instrument to which it is a party or by which it or any of its properties
may be bound, which breach, default or violation, in the case of clause (ii) or
(iii), would, if continued, have a Material Adverse Effect, or would materially
impair the ability of any of the TCP Parties to perform their obligations under
this Agreement.
(x) Independent Registered Public Accounting
Firm.
The independent registered public accounting firm, KPMG LLP, who has
audited the financial statements of the Partnership, the General Partner, Great
Lakes and NBPC included in the Pricing Disclosure Package and the Final
Prospectus (or any amendment or supplement thereto), is a registered
independent public accounting firm with respect to the Partnership, the General
Partner, Great Lakes and NBPC, as required by the Act.
(y) Financial Statements. At September 30,
2009, the Partnership had a capitalization as indicated in the Pricing
Disclosure Package and the Final Prospectus (and any amendment and supplement
thereto). The historical financial statements
(including the related notes and supporting schedules) of the Partnership, the
General Partner, Great Lakes and NBPC included in the Pricing Disclosure
Package and the Final Prospectus (and any amendment or supplement thereto)
comply as to form in all material respects with the requirements of Regulation
S-X under the Act and present fairly in all material respects the financial
position, results of operations and cash flows of the Partnership, the General
Partner, Great Lakes and NBPC on the basis stated therein at the
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respective
dates or for the respective periods which have been prepared in accordance with
generally accepted accounting principles in the United States (U.S. GAAP) consistently applied through
the periods involved, except to the extent disclosed therein. The summary financial data set forth in the
Preliminary Prospectus and the Final Prospectus (and any amendment or
supplement thereto) under the caption Summary Historical Financial Data is
accurately presented in all material respects and prepared on a basis
consistent with the audited historical financial statements from which it has
been derived, except to the extent disclosed therein.
(z) No Material Adverse Change. None of the
Partnership Entities, Great Lakes, NBPC, North Baja or Tuscarora has sustained,
since the date of the latest financial statements included in the Pricing
Disclosure Package and the Final Prospectus, any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, investigation, order or decree, otherwise than as set forth or
contemplated in the Pricing Disclosure Package and the Final Prospectus. Except as disclosed in the Pricing Disclosure
Package and the Final Prospectus (or any amendment or supplement thereto),
subsequent to the respective dates as of which such information is given in the
Pricing Disclosure Package and the Final Prospectus (or any amendment or
supplement thereto), (i) none of the Partnership Entities, Great Lakes,
NBPC, North Baja or Tuscarora has incurred any liability or obligation,
indirect, direct or contingent, or entered into any transactions, not in the
ordinary course of business, that, individually or in the aggregate, is
material to the Partnership Entities, taken as a whole, (ii) there has not
been any material change in the capitalization or material increase in the
short-term debt or long-term debt of the Partnership Entities, Great Lakes,
NBPC, North Baja or Tuscarora and (iii) there has not been any material
adverse change, or any development involving, individually or in the aggregate,
a prospective material adverse change in or affecting the general affairs,
condition (financial or other), business, prospects, assets or results of
operations of the Partnership Entities, Great Lakes, NBPC, North Baja or
Tuscarora.
(aa) Title to Properties of the Partnership
Entities. None of the Partnership Entities owns in fee simple or under
lease any real property or buildings; at the Closing Date and the Option
Closing Date, as the case may be, the Partnership Entities will have good and
marketable title to all personal property owned by them, in each case free and
clear of all liens, encumbrances and defects except such as are described in
the Pricing Disclosure Package and the Final Prospectus or such as do not
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Partnership Entities.
(bb) Title to Properties of Great Lakes, NBPC,
North Baja and Tuscarora. Great Lakes, NBPC, North Baja and Tuscarora have good and
marketable title to all real and personal property necessary to own and operate
their respective assets as described in the Pricing Disclosure Package and the
Final Prospectus, free and clear of all liens, claims, encumbrances, charges,
security interests and defects, except (i) as described in the Pricing
Disclosure Package and the Final Prospectus and (ii) such as do not
materially interfere with the ownership, operation or benefits of ownership of
their assets or
9
materially
increase the cost of operation or ownership of their assets, provided that, (a) with
respect to the gas transmission pipelines and right-of-way interests related
thereto (the Pipeline Properties)
the foregoing shall only constitute a representation that, except as described
in the Pricing Disclosure Package and the Final Prospectus, (x) each of
Great Lakes, NBPC, North Baja and Tuscarora has sufficient title to enable it
to use such Pipeline Properties in its business as they have been used in the
past and as are proposed to be used in the future, as described in the Pricing
Disclosure Package and the Final Prospectus, and (y) any lack of title has
not had and will not have any material adverse effect on the ability of Great
Lakes, NBPC, North Baja and Tuscarora to use such Pipeline Properties as they
have been used in the past and are proposed to be used in the future, as
described in the Pricing Disclosure Package and the Final Prospectus, and will
not materially increase the cost of such use, and (b) with respect to any
real property, buildings and equipment held under lease by Great Lakes, NBPC,
North Baja or Tuscarora, such real property, buildings and equipment are held
by Great Lakes, NBPC, North Baja or Tuscarora, as applicable, under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such real
property, buildings and equipment by such person.
(cc) Permits. Each of the Partnership Entities, Great
Lakes, NBPC, North Baja and Tuscarora has such permits, consents, licenses,
franchises, certificates and authorizations of governmental or regulatory
authorities (permits) as are
necessary to own its properties and to conduct its business in the manner
described in the Pricing Disclosure Package and the Final Prospectus, subject
to such qualifications as may be set forth in the Pricing Disclosure Package
and the Final Prospectus and except for such permits the failure of which to
have obtained would not have, individually or in the aggregate, a material
adverse effect upon the ability of the Partnership Entities, Great Lakes, NBPC,
North Baja or Tuscarora to conduct their businesses in all material respects as
currently conducted and as contemplated by the Pricing Disclosure Package and
the Final Prospectus to be conducted; each of the Partnership Entities, Great
Lakes, NBPC, North Baja or Tuscarora has fulfilled and performed all of its
material obligations with respect to such permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any impairment of the rights of the holder of
any such permit, except for such failures to perform, revocations, terminations
and impairments that would not have a material adverse effect upon the ability
of the Partnership Entities, Great Lakes, NBPC, North Baja or Tuscarora to
conduct their businesses in all material respects as currently conducted and as
contemplated by the Pricing Disclosure Package and the Final Prospectus to be conducted,
subject in each case to such qualification as may be set forth in the Pricing
Disclosure Package and the Final Prospectus.
(dd) Books and Records. The Partnership (i) makes
and keeps books, records and accounts that, in reasonable detail, accurately
and fairly reflect the transactions and dispositions of assets and (ii) maintains
systems of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
managements general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (C) access to
10
assets
is permitted only in accordance with managements general or specific
authorization; and (D) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(ee) Disclosure Controls. The Partnership has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15(e) under
the Exchange Act) that (i) are designed to ensure that material
information relating to the Partnership, including its subsidiary limited
partnerships, is made known to the General Partners principal executive
officer and its principal financial officer by others within those entities,
particularly during the periods in which the periodic reports required under
the Exchange Act are being prepared; (ii) have been evaluated for
effectiveness and presented conclusions regarding such effectiveness in the
Partnerships Annual Report on Form 10-K for the year ended December 31,
2008 (the Partnership 2008 Annual Report);
and (iii) as of December 31, 2008, were effective in ensuring that
the information required to be disclosed by the Partnership in the reports that
it files or submits under the Exchange Act is recorded, processed, summarized
and reported within the time periods specified in the Commissions rules and
forms.
(ff) Internal Control over Financial Reporting. The Partnerships internal control over financial
reporting was effective as of September 30, 2009 to provide reasonable
assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with U.S.
GAAP. The Partnership is not aware of
any material weaknesses in its internal control over financial reporting.
(gg) No Recent Changes to Internal Controls. Since the date of
the latest audited financial statements included or incorporated by reference
in the Preliminary Prospectus and the Final Prospectus, there have been no
changes in the Partnerships internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the
Partnerships internal control over financial reporting.
(hh) Compliance with Sarbanes-Oxley. The
General Partner and the Partnership and all of the General Partners directors
or officers, in their capacities as such, are in compliance in all material
respects with all applicable and effective provisions of the Sarbanes-Oxley Act
of 2002 and the rules and regulations promulgated in connection therewith.
(ii) Tax Returns. Each of the Partnership Entities, and, to the
knowledge of the TCP Parties, each of Great Lakes, NBPC, North Baja and
Tuscarora has filed (or has obtained extensions with respect to) all material
federal, state and foreign income and franchise tax returns required to be
filed through the date of this Agreement, which returns are complete and
correct in all material respects, and has timely paid all taxes shown to be
due, if any, pursuant to such returns, other than those (i) that are being
contested in good faith and for which adequate reserves have been established
in accordance with U.S. GAAP or (ii) that, if not paid, would not have a
Material Adverse Effect.
11
(jj) ERISA. With respect to each employee benefit plan,
program and arrangement (governed by the laws of Canada or the United States,
including, without limitation, any employee benefit plan as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (ERISA)) maintained or contributed to by
the TCP Parties, or with respect to which the Partnership could incur any
liability under ERISA (collectively, the Benefit
Plans), no event has occurred, in connection with which the
Partnership could be subject to any liability under the terms of such Benefit
Plan, applicable law (including, without limitation, ERISA and the Internal
Revenue Code of 1986, as amended) or any applicable agreement that could have a
Material Adverse Effect, or subject the limited partners of the Partnership to
any material liability or disability.
(kk) Investment Company. The Partnership is
not now, and after issuance and sale of the Units to be issued and sold by the
Partnership hereunder and application of the net proceeds from such sale as
described in the Preliminary Prospectus and the Final Prospectus under the
caption Use of Proceeds will not be, an investment company within the
meaning of the Investment Company Act of 1940, as amended.
(ll) Environmental Compliance. Except as described
in the Pricing Disclosure Package and the Final Prospectus, each of the
Partnership Entities, Great Lakes, NBPC, North Baja and Tuscarora (i) are
in compliance with any and all applicable federal, state and local laws and regulations
relating to the protection of human health and safety and the environment or
imposing liability or standards of conduct concerning any Hazardous Material
(as defined below) (Environmental Laws),
(ii) have received all permits required of them under applicable
Environmental Laws to conduct their respective businesses, (iii) are in
compliance with all terms and conditions of any such permits and (iv) do
not have any liability in connection with the release into the environment of
any Hazardous Material, except as to (i)-(iv) above where such
noncompliance with Environmental Laws, failure to receive required permits,
failure to comply with the terms and conditions of such permits or liability in
connection with such releases would not, individually or in the aggregate, have
a Material Adverse Effect. The term Hazardous Material means (A) any hazardous
substance as defined in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, (B) any hazardous waste as
defined in the Resource Conservation and Recovery Act, as amended, (C) any
petroleum or petroleum product, (D) any polychlorinated biphenyl and (E) any
pollutant or contaminant or hazardous, dangerous or toxic chemical, material,
waste or substance regulated under or within the meaning of any other
Environmental Law.
(mm) Environmental Review. In
the ordinary course of business, each of the Partnership Entities, Great Lakes,
NBPC, North Baja and Tuscarora conducts a periodic review of the effect of Environmental
Laws on its business, operations and properties, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenses required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license or
approval, any related constrains on operating activities and any potential
liabilities to third parties). Except as
set forth in the Pricing Disclosure Package and the Final Prospectus, there are
12
no
costs and liabilities associated with or arising in connection with
Environmental Laws as currently in effect (including, without limitation, costs
of compliance therewith) which would, individually or in the aggregate, result
in a Material Adverse Effect.
(nn) No Labor Dispute. Each
of the Partnership Entities, Great Lakes, NBPC, North Baja and Tuscarora are in
compliance with all federal, state and local employment and labor laws,
including, but not limited to, laws relating to non-discrimination in hiring,
promotion and pay of employees; no labor dispute with the employees of the
Partnership Entities, NBPC or Tuscarora exists or, to the knowledge of the
Partnership Entities, is imminent or threatened; and none of the Partnership
Entities, Great Lakes, NBPC, North Baja and Tuscarora is aware of any existing,
imminent or threatened labor disturbance by the employees of any of their
principal suppliers, manufacturers or contractors; in any case that would
result in a Material Adverse Effect.
(oo) Insurance. Each of the Partnership Entities, Great
Lakes, NBPC, North Baja and Tuscarora maintains insurance with insurers of
recognized financial responsibility covering their properties, operations, personnel
and businesses against such losses and risks and in such amounts as are
reasonably adequate to protect them and their businesses in a manner consistent
with other businesses similarly situated.
None of the Partnership Entities, Great Lakes, NBPC, North Baja and
Tuscarora has received notice from any insurer or agent of such insurer that
substantial capital improvements or other expenditures will have to be made in
order to continue such insurance. All
such insurance is outstanding and duly in force on the date hereof and will be
outstanding and duly in force on the Closing Date and on the Option Closing
Date. Each of the Partnership Entities,
Great Lakes, NBPC, North Baja and Tuscarora is in compliance with the terms of
such policies and instruments in all material respects; and there are no
material claims by any of the Partnership Entities, Great Lakes, NBPC, North
Baja or Tuscarora under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights clause.
(pp) Litigation. Except as described in the Pricing Disclosure
Package and the Final Prospectus, there is (i) no action, suit or
proceeding before or by any court, arbitrator or governmental agency, body or
official, domestic or foreign, now pending or, to the best of the TCP Parties
knowledge, threatened, to which any member of the Partnership Entities, Great
Lakes, NBPC, North Baja or Tuscarora is or may be a party or to which the
business or property of any of the Partnership Entities, Great Lakes, NBPC,
North Baja or Tuscarora is or may be subject, (ii) no statute, rule,
regulation or order that has been enacted, adopted or issued by any
governmental agency or that has been formally proposed by any governmental
agency, and (iii) no injunction, restraining order or order of any nature
issued by a federal or state court or foreign court of competent jurisdiction
to which any of the Partnership Entities, Great Lakes, NBPC, North Baja or
Tuscarora is or may be subject, that, in the case of clauses (i), (ii) and
(iii) above, is reasonably expected to (A) individually or in the
aggregate have a Material Adverse Effect, (B) prevent or result in the
suspension of the offering and sale of the Units, or (C) in any manner
draw into question the validity of this Agreement.
13
(qq) No Distribution of Other Offering Materials. None of the TCP
Parties has distributed and, prior to the later to occur of (i) the
Closing Date and (ii) completion of the distribution of the Units, will
not distribute, any prospectus (as defined under the Act) in connection with
the offering and sale of the Units other than the Registration Statement, any
Preliminary Prospectus, the Pricing Disclosure Package, the Final Prospectus or
other materials, if any, permitted by the Act, including Rule 134.
(rr) Market Stabilization. The TCP Parties have not taken,
directly or indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of the
Partnership to facilitate the sale or resale of the Units.
(ss) Listing. The Units are listed on the Nasdaq Global
Select Market.
(tt) Related Party Transactions. No relationship,
direct or indirect, exists between or among the TCP Parties on the one hand,
and the directors, officers, partners, customers or suppliers of the General
Partner and its respective affiliates (other than the TCP Parties) on the other
hand, which is required to be described in the Pricing Disclosure Package and
the Final Prospectus which is not so described.
(uu) No Omitted Descriptions. There are no legal
or governmental proceedings pending or, to the knowledge of the TCP Parties,
threatened or contemplated, against any of the Partnership Entities, Great
Lakes, NBPC, North Baja or Tuscarora or to which any of the Partnership
Entities, Great Lakes, NBPC, North Baja or Tuscarora is a party, or to which any
of their respective properties or assets is subject, that are required to be
described in the Pricing Disclosure Package or the Final Prospectus that are
not described as required, and there are no agreements, contracts, indentures,
leases or other instruments that are required to be described in the Pricing
Disclosure Package or the Final Prospectus or to be filed as an exhibit to the
Registration Statement that are not described or filed as required by the Act.
(vv) FCPA. None of the Partnership Entities, nor any
director or officer, nor to the knowledge of the Partnership, any agent,
employee or affiliate of any of the Partnership Entity is aware of or has taken
any action, directly or indirectly, that would result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (the FCPA),
including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer, payment,
promise to pay or authorization of the payment of any money, or other property,
gift, promise to give, or authorization of the giving of anything of value to
any foreign official (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA; and the Partnership Entities have
conducted their businesses in compliance with applicable anti-corruption laws
to which they may be subject; and
the Partnership Entities and, to the knowledge of the Partnership, their
affiliates have instituted and maintain policies and procedures designed
14
to
ensure, and which are reasonably expected to continue to ensure, continued
compliance therewith.
(ww) Money Laundering. The operations of
the Partnership Entities are and have been conducted at all times in material
compliance with applicable financial recordkeeping and reporting requirements
and the money laundering statutes of jurisdictions where the Partnership
Entities conduct business and rules and regulations thereunder and any
related or similar rules, regulations or guidelines issued, administered or
enforced by any governmental agency (collectively, the Money Laundering Laws), and no action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator involving any of
the Partnership Entities with respect to the Money Laundering Laws is pending
or, to the best knowledge of the Partnership, threatened.
(xx) OFAC. None of the Partnership Entities, nor any
director or officer, nor to the knowledge of the Partnership, any agent,
employee or affiliate of any Partnership Entity, is the subject of any
sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (OFAC); and the Partnership will not directly or indirectly use
the proceeds of the sale of the Units, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other
person or entity, for the purpose of financing the activities of any person or
entity, or in an country or territory, that at the time of such financing is
the subject of any sanctions administered by OFAC.
Any certificate signed by
any officer of any of the TCP Parties and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Units shall
be deemed a representation and warranty by the TCP Parties, as to matters
covered thereby, to each Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth herein, the Partnership agrees
to sell 5,000,000 Firm Units to
the several Underwriters; and each Underwriter agrees, severally and not
jointly, to purchase from the Partnership, at the purchase price of $36.42 per
Unit, the number of Firm Units set forth opposite such Underwriters name in Schedule 1
hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Partnership hereby grants
an option to the several Underwriters to purchase, severally and not jointly,
up to the number of Option Units set forth in Schedule 1 hereto, at
the same purchase price per Unit as the Underwriters shall pay for the Firm
Units. Said option may be exercised only
in the event the Underwriters sell more than the number of Firm Units in the
offering. Said option may be exercised
in whole or in part at any time on or before the 30th day after the date of the
Final Prospectus upon written notice by the Representatives to the Partnership
setting forth the number of Option Units as to which the several Underwriters
are
15
exercising
the option and the settlement date. The number of Option Units to be purchased
by each Underwriter shall be the same percentage of the total number of Option
Units to be purchased by the several Underwriters as the number of the Firm
Units set forth opposite the name of such Underwriter on Schedule 1
hereto bears to the aggregate number of the Firm Units, subject to such
adjustments as the Representatives, in their absolute discretion, shall make to
eliminate any fractional units.
3. Delivery and Payment. Delivery of and payment for the Firm Units
and the Option Units (if the option provided for in Section 2(b) hereof
shall have been exercised on or before the third Business Day prior to the
Closing Date) shall be made at the offices of Baker Botts L.L.P., 910 Louisiana
Street, Houston, Texas 77002, at 10:00 AM, New York City time, on November 18,
2009, or at such time on such later date not more than three Business Days
after the foregoing date as Citigroup Global Markets Inc. shall designate,
which date and time may be postponed by agreement among Citigroup Global
Markets Inc. and the Partnership or as provided in Section 9 hereof (such
date and time of delivery and payment for the Units being herein called the Closing
Date). Delivery of the Firm Units
shall be made for the account of each Underwriter against payment by the
several Underwriters of the purchase price thereof to the Partnership. Certificates for the Units, if any, shall be
registered in such names and in such denominations as Citigroup Global Markets
Inc. may request not less than two Business Days in advance of the Closing Date
or any Option Closing Date, as the case may be.
The Partnership agrees to have the certificates for the Units available
for inspection, checking and packaging in New York, New York, not later than
1:00 PM on the Business Day prior to the Closing Date or any Option
Closing Date, as the case may be.
If the option provided for
in Section 2(b) hereof is exercised after the third Business Day
prior to the Closing Date, the Partnership will deliver the Option Units (at
the expense of the Partnership) to the Underwriters, at the offices of Baker
Botts L.L.P., 910 Louisiana Street, Houston, Texas 77002, on the date specified
by Citigroup Global Markets Inc. (which shall be within three Business Days
after exercise of said option) (the Option
Closing Date) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through Citigroup
Global Markets Inc. of the purchase price thereof to the Partnership by wire
transfer payable in same-day funds to the accounts specified by the
Partnership. If settlement for the
Option Units occurs after the Closing Date, the Partnership will deliver to
Citigroup Global Markets Inc. on the Option Closing Date for the Option Units,
and the obligation of the Underwriters to purchase the Option Units shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Units for sale to the public as set forth in
the Final Prospectus.
5. Agreements. Each of the TCP Parties, jointly and
severally, covenants and agrees with the several Underwriters that:
(a) Registration Statement. Prior to the
termination of the offering of the Units, the Partnership will not file any
amendment of the Registration Statement or supplement to the Base Prospectus or
the Final Prospectus or any Rule 462(b)
16
Registration
Statement unless the Partnership has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to which
you reasonably and timely object. The
Partnership will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed in a form approved by the Representatives with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing.
The Partnership will promptly advise the Representatives (i) when
the Final Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (ii) when, prior to
termination of the offering of the Units, any amendment to the Registration
Statement shall have been filed or become effective, (iii) of any request
by the Commission or its staff for any amendment of the Registration Statement,
or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or
for any additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or
any notice that would prevent its use or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Partnership of
any notification with respect to the suspension of the qualification of the
Units for sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The
Partnership will use its best efforts to prevent the issuance of any such stop
order or the occurrence of any such suspension or prevention and, upon such
issuance, occurrence or prevention, to obtain as soon as possible the withdrawal
of such stop order or relief from such occurrence or prevention, including, if
necessary, by filing an amendment to the Registration Statement or a new
registration statement and using its best efforts to have such amendment or new
registration statement declared effective as soon as practicable.
(b) Notice of Untrue Statement or Omission in
Pricing Disclosure Package. If there occurs an event or development as a result of which
the Pricing Disclosure Package would include an untrue statement of a material
fact or would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances then prevailing, not
misleading, the Partnership will notify promptly the Representatives so that
any use of the Pricing Disclosure Package may cease until it is amended or
supplemented.
(c) Amendment of Registration Statement. If, at any time
when, in the opinion of counsel to the Underwriters, a prospectus relating to
the Units is required to be delivered under the Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), any event
occurs as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to amend
the Registration Statement, file a new registration statement or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder,
including in connection with use or delivery of the Final Prospectus, the
Partnership promptly will (i) notify the Representatives of such event, (ii) prepare
and file with the Commission, subject to the second sentence of paragraph (i)(a) of
this Section 5,
17
an
amendment or supplement or new registration statement which will correct such
statement or omission or effect such compliance, (iii) use its best
efforts to have any amendment to the Registration Statement or new registration
statement declared effective as soon as practicable in order to avoid any
disruption in use of the Final Prospectus and (iv) supply any supplemented
Final Prospectus to the Underwriters in such quantities as the Underwriters may
reasonably request.
(d) Documents Available. As soon as
practicable, but in any event not later than 90 days after the period covered
thereby, the Partnership will make generally available to its security holders
and to the Representatives an earnings statement or statements of the
Partnership and its subsidiaries which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 thereunder.
(e) Copies of Documents to the Underwriters. The Partnership
will furnish to the Representatives and their counsel, without charge, signed
copies of the Registration Statement (including exhibits thereto) and, so long
as delivery of a prospectus by an Underwriter or dealer may be required by the
Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172), as many copies of each Preliminary Prospectus, the
Final Prospectus and each Issuer Free Writing Prospectus and any supplement
thereto as the Underwriters may reasonably request. The Partnership will pay the expenses of
printing or other production of all documents relating to the offering.
(f) Blue Sky Qualifications. The Partnership
will arrange, if necessary, for the qualification of the Units for sale under
the laws of such jurisdictions as the Underwriters may designate, will maintain
such qualifications in effect so long as required for the distribution of the
Units and will pay any fee of the Financial Industry Regulatory Authority (FINRA), in connection with its review of
the offering; 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 Units, in any
jurisdiction where it is not now so subject.
(g) Use of Issuer Free Writing Prospectus. The
TCP Parties agree that, unless they have obtained or will obtain the prior written
consent of the Representatives, and each Underwriter, severally and not
jointly, agrees with the TCP Parties that, unless it has obtained or will
obtain, as the case may be, the prior written consent of the Partnership, it
has not made and will not make any offer relating to the Units that would
constitute an Issuer Free Writing Prospectus or that would otherwise constitute
a free writing prospectus (as defined in Rule 405) required to be filed
by the Partnership with the Commission or retained by the Partnership under Rule 433;
provided that the prior written consent of the parties hereto shall be
deemed to have been given in respect of the free writing prospectuses included
in Schedule 3 hereto. Any such
free writing prospectus consented to by the Underwriters or the TCP Parties is
hereinafter referred to as a Permitted Free
Writing Prospectus. The TCP
Parties agree that (x) they have treated and will treat, as the case may
be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus
and (y) they have complied and will comply, as the case may be, with the
requirements of Rules 164 and 433 applicable to any Permitted Free
18
Writing
Prospectus, including in respect of timely filing with the Commission,
legending and record keeping.
(h) Lock-up Period; Lock-up Letters. The TCP Parties
will not, without the prior written consent of the Representatives, offer,
sell, contract to sell, pledge, or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to, result in
the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by any of the TCP Parties
directly or indirectly, including the filing (or participation in the filing)
of a registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act) any Common
Units or any securities convertible into, or exercisable, or exchangeable for,
Common Units, or publicly announce an intention to effect any such transaction,
for a period of 60 days after the Applicable Time (the Lock-up Period) except that (i) the
Partnership may sell the Units offered hereby, (ii) the Partnership may
grant restricted units or options to purchase Common Units under the
Partnerships Long-Term Incentive Plan as in effect on the date hereof and (iii) the
Partnership may sell Common Units to TransCanada directly or indirectly,
provided that TransCanada agrees in writing not to offer, sell, contract to
sell, pledge, or otherwise dispose of such Common Units during the Lock-up
Period. In addition, each executive officer
and director of the General Partner will execute and deliver to the
Underwriters a letter, dated the Execution Date, substantially in the form of Exhibit A hereto.
Notwithstanding the
foregoing, if (1) during the last 17 days of the Lock-up Period, the
Partnership issues an earnings release or material news or a material event
relating to the Partnership occurs or (2) prior to the expiration of the
Lock-up Period, the Partnership announces that it will release earnings results
during the 16-day period beginning on the last day of the Lock-up Period, then
the restrictions imposed by this Section 5(i)(f) shall continue to
apply until the expiration of the 18-day period beginning on the issuance of
the earnings release or the announcement of the material news or the occurrence
of the material event, unless the Representatives waive, in writing, such
extension.
In furtherance of the
foregoing, the Partnership and its transfer agent are authorized to decline to
make any transfer of securities if such transfer would constitute a violation
or breach of this Section 5(i)(f).
In addition, the TCP Parties agree that, without the prior written
consent of the Representatives, the TCP Parties will not, during the Lock-up
Period make any demand for or exercise any right with respect to the
registration of any Common Units or any security convertible into or
exercisable or exchangeable for Common Units.
(i) Market Stabilization. The
TCP Parties will not take, directly or indirectly, any action designed to or
that would constitute or that might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, stabilization or manipulation of the
price of any security of the Partnership to facilitate the sale or resale of
the Units.
19
(j) Expenses.
The Partnership agrees to pay
the costs and expenses relating to the following matters: (i) the preparation, printing or
reproduction and filing with the Commission of the Registration Statement
(including financial statements and exhibits thereto), each Preliminary
Prospectus, the Pricing Disclosure Package, the Final Prospectus, and each
amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the Registration Statement, each
Preliminary Prospectus, the Pricing Disclosure Package, the Final Prospectus,
and all amendments or supplements to any of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the Units; (iii) the
preparation, printing, authentication and delivery of certificates for the
Units, including any stamp or transfer taxes in connection with the sale of the
Units; (iv) the printing (or reproduction) and delivery of this Agreement,
any blue sky memorandum and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the Units; (v) any
registration or qualification of the Units for offer and sale under the Units
or blue sky laws of the several states (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to such
registration and qualification); (vi) any filings required to be made with
FINRA (including filing fees and the reasonable fees and expenses of counsel
for the Underwriters relating to such filings); (vii) the transportation
and other expenses incurred by or on behalf of Partnership representatives in
connection with presentations to prospective purchasers of the Units; (viii) the
fees and expenses of the Partnerships accountants and the fees and expenses of
counsel (including local and special counsel) for the Partnership; and (ix) all
other costs and expenses incident to the performance by the Partnership of its
obligations hereunder.
6. Conditions to
the Obligations of the Underwriters. The obligations of the Underwriters to
purchase the Firm Units and the Option Units, as the case may be, shall be
subject to the accuracy of the representations and warranties on the part of
the TCP Parties contained herein as of the Applicable Time, the Closing Date
and, if applicable, the Option Closing Date, to the accuracy of the statements
of the TCP Parties made in any certificates pursuant to the provisions hereof,
to the performance by the TCP Parties of their respective obligations hereunder
and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, will have
been filed in the manner and within the time period required by Rule 424(b),
and any other material required to be filed by the Partnership pursuant to Rule 433(d),
shall have been filed with the Commission within the applicable time periods
prescribed for such filings by Rule 433; and no stop order suspending the
effectiveness of the Registration Statement or any notice that would prevent
its use shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) All corporate or partnership proceedings and other legal
matters incident to the authorization, form and validity of this Agreement, the
Units, the Registration Statement, the Pricing Disclosure Package and the Final
Prospectus, and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the
20
Partnership
shall have furnished to such counsel all documents and information that they
may reasonably request to enable them to pass upon such matters.
(c) The Partnership shall have requested
and caused Orrick, Herrington & Sutcliffe LLP, counsel for the
Partnership, to have furnished to the Underwriters their written opinion,
subject to reasonable and customary qualifications, dated the Closing Date and
the Option Closing Date, if applicable, and addressed to the Underwriters in
form and substance satisfactory to the Underwriters, substantially to the
effect that:
(i) Each of the TCP Entities, Great Lakes and North Baja has
been duly formed and is validly existing in good standing as a corporation,
limited partnership or limited liability company under the DGCL, the DRULPA or
the Delaware LLC Act, as the case may be, with full corporate, partnership or
limited liability company power and authority, as the case may be, to own or
lease its properties and to conduct the businesses in which it is engaged, in
each case in all material respects as described in the Pricing Disclosure
Package and the Final Prospectus. Each
of the TCP Entities is duly registered or qualified as a foreign corporation or
limited partnership, as the case may be, for the transaction of business and is
in good standing under the laws of the jurisdictions set forth on Exhibit B to this Agreement.
(ii) The General Partner has full corporate power and authority
to act as the general partner of the Partnership and each of the Intermediate
Partnerships, in each case in all material respects as described in the Pricing
Disclosure Package and the Final Prospectus.
(iii) Each of the Intermediate Partnerships has full partnership
power and authority to act as the general partner of each of Great Lakes, NBPC
or Tuscarora, as applicable, in each case in all material respects as described
in the Pricing Disclosure Package and the Final Prospectus.
(iv) The General Partner is the sole general partner of the
Partnership and each of the Intermediate Partnerships with a 1.0% general
partner interest in the Partnership and a 1.0101% general partner interest in
each of the Intermediate Partnerships; such general partner interests have been
duly authorized and validly issued in accordance with the Partnership Agreement
and the Intermediate Partnership Agreements; and the General Partner owns such
general partner interests free and clear of all liens, encumbrances, security
interests, charges or claims (A) in respect of which a financing statement
under the Uniform Commercial Code of the State of Delaware naming the General
Partner as debtor is on file in the office of the Secretary of State of the
State of Delaware as of a recent date or (B) otherwise known to such
counsel, without independent investigation, other than those created by or
arising under the DRULPA.
(v) As of the date hereof, the issued and outstanding limited
partner interests of the Partnership consist of 41,227,766 Common Units and
Incentive Distribution Rights. The Units
and the limited partner interests represented
21
thereby have been duly authorized by the
Partnership and, when issued and delivered to the Underwriters against payment
therefor in accordance with the terms of this Agreement, will be validly
issued, fully paid (to the extent required under the Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by Sections
17-607 and 17-303 of the DRULPA and as described in the Prospectus). The Incentive Distribution Rights and the
limited partner interests represented thereby have been duly authorized and
validly issued in accordance with the Partnership Agreement and are fully paid
(to the extent required under the Partnership Agreement) and nonassessable
(except as such nonassessability may be affected by Section 17-607 of the
DRULPA and as otherwise disclosed in the Prospectus). The Common Units and the Incentive
Distribution Rights conform as to legal matters in all material respects to the
descriptions thereof contained in the Registration Statement and the Final
Prospectus.
(vi) The Partnership owns a 98.9899% limited partner interest in
each of the Intermediate Partnerships; such limited partner interests have been
duly authorized and validly issued in accordance with the applicable
Intermediate Partnership Agreement and are fully paid (to the extent required
under the applicable Intermediate Partnership Agreement) and nonassessable
(except as such nonassessability ay be affected by Section 17-607 of the
DRULPA); and the Partnership owns such limited partner interests free and clear
of all liens, encumbrances, security interests, charges or claims (A) in
respect of which a financing statement under the Uniform Commercial Code of the
State of Delaware naming the Partnership as debtor is on file in the office of
the Secretary of State of the State of Delaware as of a recent date or (B) otherwise
known to such counsel, without independent investigation, other than those
created by or arising under the DRULPA.
(vii) TC GL Intermediate Partnership owns a 46.45% general partner
interest in Great Lakes; such general partner interest has been duly authorized
and validly issued in accordance with the Great Lakes Partnership Agreement;
and TCP Intermediate Partnership owns such general partner interest free and
clear of all liens, encumbrances, security interests, charges or claims (A) in
respect of which a financing statement under the Uniform Commercial Code of the
State of Delaware naming TCP Intermediate Partnership as debtor is on file in
the office of the Secretary of State of the State of Delaware as of a recent
date or (B) otherwise known to such counsel, without independent
investigation, other than those created by or arising under the DRULPA.
(viii) TCP Intermediate Partnership owns its
general partner interest in NBPC free and clear of all liens, encumbrances,
security interests, charges or claims (A) in respect of which a financing
statement under the Uniform Commercial Code of the State of Delaware naming TCP
Intermediate Partnership as debtor is on file in the office of the Secretary of
State of the State of Delaware as of a recent date or (B) otherwise known
to such counsel, without independent
22
investigation, other than those created by or
arising under the Texas Revised Partnership Act.
(ix) TCP Intermediate Partnership owns a 100% membership
interest in North Baja; such membership interest has been duly authorized and
validly issued in accordance with the North Baja LLC Agreement; and TCP
Intermediate Partnership owns such membership interest free and clear of all
liens, encumbrances, security interests, charges or claims (A) in respect
of which a financing statement under the Uniform Commercial Code of the State
of Delaware naming TCP Intermediate Partnership as debtor is on file in the
office of the Secretary of State of the State of Delaware as of a recent date
or (B) otherwise known to such counsel, without independent investigation,
other than those created by or arising under the Delaware LLC Act.
(x) TCT Intermediate Partnership owns its general partner
interest in Tuscarora free and clear of all liens, encumbrances, security
interests, charges or claims (A) in respect of which a financing statement
under the Uniform Commercial Code of the State of Delaware naming TCT
Intermediate Partnership as debtor is on file in the office of the Secretary of
State of the State of Delaware as of a recent date or (B) otherwise known
to such counsel, without independent investigation, other than those created by
or arising under Nevada law.
(xi) Except as have been waived or satisfied, there are no
preemptive rights or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any interests in the Partnership
Entities pursuant to any of the Organizational Documents of the Partnership
Entities, except as provided in Section 7.12 of the Partnership
Agreement. To such counsels knowledge,
neither the filing of the Registration Statement nor the offering or sale of
the Units by the Partnership as contemplated by this Agreement gives rise to
any rights for or relating to the registration of any Units or other securities
of the Partnership, except such rights as have been waived or satisfied.
(xii) This Agreement has been duly authorized, executed and
delivered by each of the TCP Parties.
(xiii) The Partnership Agreement and the
Intermediate Partnership Agreements have been duly authorized, executed and
delivered by the General Partner and are valid and legally binding agreements
of the General Partner, enforceable against the General Partner in accordance
with its terms; provided, that, with respect to each such agreement, the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or affecting
creditors rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and, provided further, that the indemnity, contribution and exoneration
provisions contained in any such agreements may be limited by applicable laws
and public policy.
23
(xiv) The Great Lakes Partnership Agreement has been duly
authorized, executed and delivered by TCGL Intermediate Partnership and is a
valid and legally binding agreement of TCGL Intermediate Partnership,
enforceable against TCGL Intermediate Partnership in accordance with its terms;
provided, that the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws
relating to or affecting creditors rights generally and by general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and, provided further, that the indemnity,
contribution and exoneration provisions contained in such agreement may be
limited by applicable laws and public policy.
(xv) The North Baja LLC Agreement is valid and legally binding
agreement of TCP Intermediate Partnership, enforceable against TCP Intermediate
Partnership in accordance with its terms; provided, that the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws relating to or affecting creditors
rights generally and by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law) and,
provided further, that the indemnity, contribution and exoneration provisions
contained in such agreement may be limited by applicable laws and public
policy.
(xvi) None of the issuance, offering and sale by the Partnership of
the Units, the execution, delivery and performance of this Agreement by the TCP
Parties, or the consummation of the transactions contemplated hereby or thereby
(A) constitutes or will constitute a violation of the Organizational
Documents of the TCP Entities, (B) constitutes or will constitute a breach
or violation of, or a default under (or an event that, with notice or lapse of
time or both, would constitute such a default), any agreement filed or
incorporated by reference as an exhibit to any Incorporated Document (including
any amendment or supplement thereto), (C) violates or will violate any
federal or Delaware statute, law or regulation, or (D) results or will
result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of any of the TCP Entities, which conflicts, breaches,
violations, defaults or liens, in the case of clauses (B), (C) or (D),
would, individually or in the aggregate, have a Material Adverse Effect or
would materially impair the ability of any of the TCP Parties to perform their
obligations under this Agreement.
(xvii) No permit, consent, approval,
authorization, order, registration, filing or qualification of or with any
Delaware or federal court, governmental agency or body having jurisdiction over
any of the TCP Entities or any of their respective properties is required in
connection with the transactions contemplated herein, except such as have been
obtained under the Act and such as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the Units by the
Underwriters in the manner contemplated in this Agreement and in the Final
Prospectus.
24
(xviii) The statements in the Preliminary
Prospectus and the Final Prospectus under the captions Description of Common
Units and Tax Considerations and the description of the Partnership
Agreement contained in the Partnerships registration statement on Form 8-A/A,
filed on November 12, 2009 as they constitute descriptions of agreements,
fairly describe in all material respects the portions of the agreements
addressed thereby, and insofar as they purport to constitute summaries of law
or legal conclusions, fairly describe in all material respects the portions of
the statutes and regulations addressed thereby, and the Common Units and the
Incentive Distribution Rights conform in all material respects to the
description thereof contained in the Preliminary Prospectus and the Final
Prospectus.
(xix) The Registration Statement was declared effective under the
Act on December 24, 2008; any required filing of the Preliminary
Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule 424(b);
to the knowledge of such counsel, no stop order suspending the effectiveness of
the Registration Statement or any notice that would prevent its use has been
issued, no proceedings for that purpose have been instituted or threatened.
(xx) The Registration Statement and the Final Prospectus
(including any amendment or supplement thereto) (except for the financial
statements and the notes and the schedules thereto, and the other financial and
statistical information included therein, as to which such counsel need not
express any opinion) appear on their face to comply as to form in all material
respects with the applicable requirements of the Act and the rules and
regulations promulgated thereunder.
(xxi) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the TCP Entities or any
of their subsidiaries or their property of a character required to be disclosed
in the Registration Statement or the Final Prospectus which is not so disclosed
in the Pricing Disclosure Package and the Final Prospectus, and there is no
franchise, contract or other document of a character required to be described
in the Registration Statement or the Final Prospectus, or to be filed as an
exhibit thereto, which is not described or filed as required.
(xxii) None of the TCP Entities is and, after
giving effect to the offering and sale of the Units and the application of the
proceeds thereof as described in the Preliminary Prospectus and the Final
Prospectus, neither will be, an investment company as defined in the
Investment Company Act of 1940, as amended.
In addition, such counsel
shall state that they have participated in conferences with officers and other
representatives of the Partnership Entities and the independent public
accountants of the Partnership and your representatives, at
25
which the contents of the Registration
Statement, the Final Prospectus and the Pricing Disclosure Package and related
matters were discussed, and although such counsel has not independently
verified, is not passing on, and is not assuming any responsibility for the
accuracy, completeness or fairness of the statements contained in, the
Registration Statement, the Final Prospectus and the Pricing Disclosure Package
(except to the extent specified in the foregoing opinion), nothing has come to
such counsels attention which would lead it to believe that: (A) any part
of the Registration Statement, as of the date on which such part became
effective and as of the date of this Agreement, contained any 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, (B)
the Final Prospectus, as of its issue date and the Closing Date, contained or
contains any untrue statement of a material fact or omitted or omits 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 or (C) the
Pricing Disclosure Package, as of the Applicable Time, contained any untrue
statement of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of circumstances under which
they were made, not misleading (other than (i) the financial statements
included or incorporated by reference therein, including the notes and
schedules thereto and the auditors reports thereon, and (ii) the other
financial and statistical information derived from the financial statements
included or incorporated by reference therein, as to which such counsel need
not comment).
In rendering such opinion,
such counsel may (A) rely in respect of matters of fact upon statements
and representations of officers and employees of the TCP Parties, to the extent
they deem proper, and upon information obtained from public officials, (B) assume
that all documents submitted to them as originals are authentic, that all
copies submitted to them conform to the originals thereof, and that the
signatures on all documents examined by them are genuine, (C) state that
their opinion is limited to federal laws, the DRULPA, the DGCL and the Delaware
LLC Act, (D) with respect to the opinions expressed in paragraph (i) above
as to the due qualification or registration as a foreign limited partnership or
corporation, as the case may be, of each the TCP Entities, state that such
opinions are based on certificates of foreign qualification or registration
provided by the Secretary of State of the States listed on Exhibit B (each
of which shall be dated as of a date not more than fourteen days prior to the
Closing Date and shall be provided to the Underwriters) and (E) state that
they express no opinion with respect to state or local taxes or tax statutes to
which any of the limited partners of the Partnership or any of the TCP Entities
may be subject.
(d) The Partnership shall have requested
and caused Kristine Delkus, counsel for the Partnership, to have furnished to
the Underwriters her written opinion, subject to reasonable and customary
qualifications, dated the Closing Date and the Option Closing Date, if
applicable, and addressed to the Underwriters, substantially to the effect
that:
26
(i) The statements in the Incorporated Documents under the
captions BusinessOverview, Business of Great Lakes, Business of Northern
Border and Business of Tuscarora as they constitute descriptions of
agreements, fairly describe in all material respects the portions of the
agreements addressed thereby, and insofar as they purport to constitute
summaries of law or legal conclusions, fairly describe in all material respects
the portions of the statutes and regulations addressed thereby.
(ii) None of the offering and sale by the Partnership of the
Units, the execution, delivery and performance of this Agreement by the TCP
Parties, or the consummation of the transactions contemplated thereby (A) violates
or will violate any order, judgment, decree or injunction of any court or
governmental agency or body known to such counsel directed to any of the TCP
Entities, Great Lakes, NBPC, North Baja or Tuscarora or any of their properties
in a proceeding to which any of them or their property is a party or (B) constitutes
or will constitute a breach or violation of, or a default under (or an event
that, with notice or lapse of time or both, would constitute such a default),
any agreement, lease or instrument known to such counsel (excluding any
agreement filed or incorporated by reference as an exhibit to any Incorporated
Document (including any amendment or supplement thereto) as to which such
counsel need not express any opinion) to which any of the Partnership Entities,
Great Lakes, North Baja or Tuscarora is a party, which breaches, violations or
defaults, in the case of clauses (A) or (B), would, individually or in the
aggregate, have a Material Adverse Effect or would materially impair the
ability of any of the TCP Parties to perform their obligations under this
Agreement.
(iii) To the knowledge of such counsel, except as disclosed in
the Pricing Disclosure Package and the Final Prospectus, there is no pending or
threatened action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the TCP Entities or any
of their subsidiaries or their property which, if determined adversely to any
such party, would, individually or the aggregate, result in a Material Adverse
Effect.
(e) The Partnership shall have requested
and caused Woodburn and Wedge, special Nevada counsel of Tuscarora, to have
furnished to the Underwriters their written opinion, subject to reasonable and
customary qualifications, dated the Closing Date and the Option Closing Date,
if applicable, and addressed to the Underwriters, substantially to the effect
that:
(i) Tuscarora has been duly formed and is validly existing in
good standing as a general partnership under the laws of the State of Nevada
with full partnership power and authority to own or lease its properties and to
conduct its businesses in which it is engaged, in each case in all material
respects as described in the Pricing Disclosure Package and the Final
Prospectus.
(ii) TCT Intermediate Partnership owns directly or indirectly a
100% general partner interest in Tuscarora; such general partner interest has
been duly
27
authorized and validly issued in accordance
with the partnership agreement of Tuscarora, as amended to date.
(iii) The Tuscarora Partnership Agreement has been duly
authorized, executed and delivered by TCT Intermediate Partnership and is a
valid and legally binding agreement of TCT Intermediate Partnership,
enforceable against TCT Intermediate Partnership in accordance with its terms;
provided, that the enforceability thereof may be limited by (A) applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws relating to or affecting creditors rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (B) public policy,
applicable law relating to fiduciary duties and indemnification and
contribution and an implied covenant of good faith and fair dealing.
(f) The Partnership shall have requested
and caused Andrews Kurth LLP, Texas counsel for NBPC, to have furnished to the
Underwriters their written opinion, subject to reasonable and customary
qualifications, dated the Closing Date and the Option Closing Date, if
applicable, and addressed to the Underwriters, substantially to the effect
that:
(i) NBPC is validly existing
under the laws of the State of Texas with full partnership power and
authority to own or lease its properties and to conduct its business in which
it is engaged, in each case in all material respects as described in the
Pricing Disclosure Package and the Final Prospectus.
(ii) TCP Intermediate Partnership owns a 50% general partner
interest in NBPC; such general partner interest has been duly authorized and
validly issued in accordance with the NBPC Partnership Agreement.
(iii) The NBPC Partnership Agreement has been duly authorized,
executed and delivered by TCP Intermediate Partnership and is a valid and
legally binding agreement of TCP Intermediate Partnership, enforceable against
TCP Intermediate Partnership in accordance with its terms; provided, that the
enforceability thereof may be limited by (A) applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws
relating to or affecting creditors rights generally and by general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and (B) public policy, applicable law
relating to fiduciary duties and indemnification and contribution and an
implied covenant of good faith and fair dealing.
(g) The Underwriters shall have received from
Baker Botts L.L.P., counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and the Option Closing Date, if applicable, and
addressed to the Underwriters, with respect to the sale of the Units, the
Registration Statement, the Pricing Disclosure Package, the Final Prospectus
(together with any supplement thereto) and other related matters as the
28
Underwriters
may reasonably require, and the Partnership shall have furnished to such
counsel such documents as they reasonably request for the purpose of enabling
them to pass upon such matters.
(h) The Partnership shall have furnished
to the Representatives a certificate reasonably satisfactory to them, signed on
behalf of the Partnership by the Chairman of the Board or the President and the
principal financial or accounting officer of the General Partner, dated the
Closing Date and the Option Closing Date, if applicable, to the effect that the
signers of such certificate have carefully examined the Registration Statement,
the Final Prospectus, the Pricing Disclosure Package, any supplements or
amendments thereto and this Agreement and that:
(i) the representations and warranties of the TCP Parties in
this Agreement are true and correct on and as of the Closing Date with the same
effect as if made on the Closing Date and the TCP Parties have complied with
all the agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any notice that would prevent its use has been issued
and no proceedings for that purpose have been instituted or, to such persons
knowledge, threatened;
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of the
TCP Entities and their subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth in or
contemplated in the Pricing Disclosure Package and the Final Prospectus (exclusive
of any supplement thereto); and
(iv) such other matters as the Underwriters may reasonably
request.
(i) At the time of the execution of this
Agreement, the Underwriters shall have received from KPMG LLP a letter or
letters with respect to each of the Partnership and the General Partner, Great
Lakes and NBPC, in form and substance satisfactory to the Representatives,
addressed to the Representatives and dated the date hereof, each (i) confirming
that they are an independent registered public accounting firm within the
meaning of the Act and are in compliance with the applicable rules and
regulations thereunder adopted by the Commission and the Public Accounting
Oversight Board (PCAOB), and (ii) stating
that, as of the date hereof (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Pricing Disclosure Package and the Prospectus, as
of a date not more than three days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information and other
matters ordinarily covered
29
by
accountants comfort letters to underwriters in connection with registered
public offerings.
(j) With
respect to the letter or letters of KPMG LLP referred to in the preceding
paragraph and delivered to the Underwriters concurrently with the execution of
this Agreement (the initial letters), such accounting firm shall have
furnished to the Underwriters a letter or letters (the bring-down letters) of
KPMG LLP, addressed to the Underwriters and dated the Closing Date or the
Option Closing Date, as the case may be, (i) confirming that they are an
independent registered public accounting firm within the meaning of the Act and
are in compliance with the applicable rules and regulations thereunder
adopted by the Commission and the PCAOB, (ii) stating that, as of the date
of such bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than three days
prior to the date of such bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other matters covered
by the initial letters and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letters.
(k) Subsequent
to the Applicable Time or, if earlier, the dates as of which information is
given in the Registration Statement (exclusive of any amendment thereof), the
Pricing Disclosure Package and the Final Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraphs (i) and (j) of
this Section 6 or (ii) any change, or any development involving,
individually or in the aggregate, a prospective change, in or affecting the
general affairs, condition (financial or other), business, prospects, assets or
results of operations of the Partnership and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Pricing Disclosure
Package and the Final Prospectus the effect of which, in any case referred to
in clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Units as
contemplated by the Registration Statement, the Pricing Disclosure Package and
the Final Prospectus.
(l) Subsequent
to the Applicable Time, there shall not have been any decrease in the rating of
any of NBPCs debt securities by any nationally recognized statistical rating
organization (as defined for purposes of Rule 436(g) under the Act)
or any notice given of any intended or potential decrease in any such rating or
of a possible change in any such rating that does not indicate the direction of
the possible change.
(m) Prior
to the Closing Date, the TCP Parties shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If
any of the conditions specified in this Section 6 shall not have been
fulfilled when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of
30
the Underwriters hereunder may be canceled at, or at any time prior to,
the Closing Date and, if applicable, the Option Closing Date by the
Representatives. Notice of such
cancellation shall be given to the Partnership in writing or by telephone or
facsimile confirmed in writing.
7. Reimbursement
of Underwriters Expenses. If the
sale of the Units provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 6 hereof is
not satisfied, because of any termination pursuant to Section 10 hereof or
because of any refusal, inability or failure on the part of the TCP Parties to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the TCP Parties will reimburse the Underwriters severally
through the Representatives on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Units.
8. Indemnification
and Contribution.
(a) Each
of the TCP Parties, jointly and severally, agree to indemnify and hold harmless
each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any Preliminary
Prospectus, any Permitted Free Writing Prospectus, the Final Prospectus, any
Issuer Free Writing Prospectus or any road show (as defined in Rule 433)
not constituting an Issuer Free Writing Prospectus (a Non-Prospectus Road Show), or in any
amendment thereof or supplement thereto, (ii) the omission or alleged
omission to state in the Registration Statement a material fact required to be
stated therein or necessary to make the statements therein not misleading or (iii) the
omission or alleged omission to state in any Preliminary Prospectus, any
Permitted Free Writing Prospectus, the Final Prospectus, any Issuer Free
Writing Prospectus or any Non-Prospectus Road Show a material fact necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, and agrees to reimburse each such indemnified party,
as incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that each of the TCP Parties will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Partnership by or
on behalf of any Underwriter through the Representatives specifically for
inclusion therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8(b) hereof. This indemnity agreement will be in addition
to any liability which the TCP Parties may otherwise have.
31
(b) Each
Underwriter severally and not jointly agrees to indemnify and hold harmless the
TCP Parties, each of their respective directors, each of its officers who signs
the Registration Statement, and each person who controls the TCP Parties within
the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Partnership by or on
behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity, it being
understood and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in this Section 8(b). This indemnity agreement will be in addition
to any liability which any Underwriter may otherwise have. The TCP Parties acknowledge that the statements
set forth in the last paragraph of the cover page regarding delivery of
the Units and, under the heading Underwriting, (i) the list of
Underwriters and their respective participation in the sale of the Units, (ii) the
sentences related to concessions and reallowances, and (iii) the
paragraphs related to stabilization, syndicate covering transactions and
penalty bids in any Preliminary Prospectus, the Final Prospectus and any Issuer
Free Writing Prospectus constitute the only information furnished in writing by
or on behalf of the several Underwriters for inclusion in any Preliminary
Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus, or in
any amendment or supplement thereto.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent
it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii) will
not, in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above.
The indemnifying party shall be entitled to appoint counsel of the
indemnifying partys choice at the indemnifying partys expense to represent
the indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the indemnified party or
parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying partys
election to appoint counsel to represent the indemnified party in an action,
the indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of
counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party
32
within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action) unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such claim, action,
suit or proceeding and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) In
the event that the indemnity provided in paragraph (a) or (b) of this
Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the TCP Parties, jointly and severally, and
the Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively Losses) to which the TCP Parties and one
or more of the Underwriters may be subject in such proportion as is appropriate
to reflect the relative benefits received by the TCP Parties on the one hand
and by the Underwriters on the other from the offering of the Units; provided,
however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Units) be responsible for any amount in excess of the underwriting discount or
commission applicable to the Units purchased by such Underwriter hereunder. If
the allocation provided by the immediately preceding sentence is unavailable
for any reason, the TCP Parties, jointly and severally, and the Underwriters
severally shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the TCP Parties on
the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations.
Benefits received by the TCP Parties shall be deemed to be equal to the
total net proceeds from the offering (before deducting expenses) received by
the Partnership, and benefits received by the Underwriters shall be deemed to
be equal to the total underwriting discounts and commissions, in each case as
set forth on the cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the TCP Parties on the one
hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The
TCP Parties and the Underwriters agree that it would not be just and equitable
if contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions
of this paragraph (d), 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. For purposes of this Section 8,
each person who controls an Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of an
Underwriter shall
33
have
the same rights to contribution as such Underwriter, and each person who
controls any of the TCP Parties within the meaning of either the Act or the
Exchange Act, each officer of the TCP Parties who shall have signed the
Registration Statement and each director of the TCP Parties shall have the same rights to contribution as
the TCP Parties, subject in each case to the applicable terms and conditions of
this paragraph (d).
9. Default
by an Underwriter. If any one or
more Underwriters shall fail to purchase and pay for any of the Units agreed to
be purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
amount of Firm Units set forth opposite their names in Schedule 1 hereto
bears to the aggregate amount of Firm Units set forth opposite the names of all
the remaining Underwriters) the Firm Units which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate amount of Units which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of Units set forth in Schedule 1 hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Units, and if such nondefaulting
Underwriters do not purchase all the Units, this Agreement will terminate
without liability to any nondefaulting Underwriter or the TCP Parties. In the event of a default by any Underwriter
as set forth in this Section 9, the Closing Date shall be postponed for
such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Pricing Disclosure Package
and the Final Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the TCP Parties and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Partnership prior to delivery of and payment for the Units, if at any
time prior to such time (i) trading in the Partnerships Common Units
shall have been suspended by the Commission or the Nasdaq Stock Market or
trading in securities generally on the New York Stock Exchange or the Nasdaq
Stock Market shall have been suspended or limited or minimum prices shall have
been established on the New York Stock Exchange or the Nasdaq Stock Market, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States shall have occurred or (iii) there
shall have occurred any outbreak or escalation of hostilities, declaration by
the United States of a national emergency or war, or other calamity or crisis
the effect of which on financial markets is such as to make it, in the sole
judgment of the Representatives, impractical or inadvisable to proceed with the
offering or delivery of the Units as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
11. Representations
and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the TCP Parties or their respective officers and of the
Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter, the TCP Parties or any of their respective officers, directors,
employees, agents or
34
controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Units.
The provisions of Sections 7 and 8 hereof shall survive the termination
or cancellation of this Agreement.
12. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Partnership Parties,
will be mailed or delivered to TC PipeLines, LP, 13710 FNB Parkway, Omaha,
Nebraska 68154; or if sent to Citigroup Global Markets Inc., will be mailed or
delivered to Citigroup Global Markets Inc., General Counsel (fax no.: (212)
816-7912) and confirmed to the General Counsel, Citigroup Global Markets Inc.,
at 388 Greenwich Street, New York, New York, 10013, Attention: General Counsel;
or if sent to Merrill, Lynch, Pierce, Fenner & Smith Incorporated,
will be mailed or delivered to Merrill, Lynch, Pierce, Fenner & Smith
Incorporated, 4 World Financial Center, New York, New York 10080, Attention:
Syndicate Department; or if sent to Morgan Stanley & Co. Incorporated,
will be mailed or delivered to Morgan Stanley & Co. Incorporated, 1585
Broadway, New York, New York 10036, Attention: Legal Department; or if sent to
UBS Securities LLC, will be mailed or delivered to UBS Securities LLC, 299 Park
Avenue, New York, New York 10171.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
14. No
Fiduciary Duty. Each of the TCP
Parties hereby acknowledges that (a) the purchase and sale of the Units
pursuant to this Agreement is an arms-length commercial transaction between
the Partnership, on the one hand, and the Underwriters and any affiliate
through which it may be acting, on the other, (b) the Underwriters are
acting as principal and not as an agent or fiduciary of the Partnership and (c) the
Partnerships engagement of the Underwriters in connection with the offering
and the process leading up to the offering is as independent contractors and
not in any other capacity. Furthermore, the Partnership agrees that it is
solely responsible for making its own judgments in connection with the offering
(irrespective of whether any of the Underwriters has advised or is currently
advising the Partnership on related or other matters). The Partnership agrees that it will not claim
that the Underwriters have rendered advisory services of any nature or respect,
or owe an agency, fiduciary or similar duty to the Partnership, in connection
with such transaction or the process leading thereto.
15. Integration. This Agreement supersedes all prior
agreements and understandings (whether written or oral) between the Partnership
and the Underwriters, or any of them, with respect to the subject matter
hereof.
16. Applicable
Law. This Agreement will 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.
17. Venue. Each of the parties hereto irrevocably (i) agrees
that any legal suit, action or proceeding arising out of or based upon this
Agreement or the transactions contemplated hereby may be instituted in any
court within the Borough of Manhattan of New York City, (ii) waives, to
the fullest extent it may effectively do so, any objection which it may
35
now or hereafter have to the laying of venue of any such proceeding and
(iii) submits to the exclusive jurisdiction of such courts in any such
suit, action or proceeding.
18. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
19. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
20. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
Act shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
Applicable
Time means 8:40 a.m. (New York
City time) on November 13, 2009, which the Underwriters have informed the
Partnership is a time prior to the time of the first sale of the Units.
Base Prospectus shall mean the base prospectus filed as
part of the Registration Statement, in the form in which it has most recently
been amended at the Applicable Time.
Business Day shall mean any day other than a Saturday,
a Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
Commission shall mean the Securities and Exchange
Commission.
Effective Date shall mean any date as of which any part of
the Registration Statement relating to the Units became, or is deemed to have
become, effective under the Securities Act in accordance with the Rules and
Regulations.
Exchange Act shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
Final Prospectus shall mean the prospectus supplement
relating to the Units and the base prospectus that is part of the registration
statement that were first filed pursuant to Rule 424(b) after the
Applicable Time.
Incorporated Documents shall mean the documents which at
the time are incorporated by reference in the Registration Statement, the Base
Prospectus, the Final Preliminary Prospectus or the Final Prospectus or any
amendment or supplement thereto.
36
Issuer Free Writing Prospectus shall mean each free
writing prospectus (as defined in Rule 405) prepared by or on behalf of
the Partnership or used or referred to by the Partnership in connection with
the offering of the Units.
Preliminary Prospectus shall mean the preliminary
prospectus supplement relating to the Units that is filed with the Commission
pursuant to Rule 424(b) and used prior to the filing of the Final
Prospectus, together with the Base Prospectus.
Pricing Disclosure Package
shall mean, as of the Applicable Time, the Preliminary Prospectus, together
with (A) each Issuer Free Writing Prospectus filed or used by the
Partnership on or before the Applicable Time, other than a road show that is an
Issuer Free Writing Prospectus under Rule 433, and (B) the number of
Units and the public offering price of the Units set forth in Schedule 2
hereof, which will be included on the cover page of the Final Prospectus.
Registration Statement shall mean, collectively, the
various parts of the registration statement on Form S-3 (file number
333-156144), including exhibits and financial statements and any information in
the prospectus supplement relating to the Units that is filed with the
Commission pursuant to Rule 424(b) and deemed part of such
registration statement pursuant to Rule 430B, as amended on each Effective
Date and, in the event of any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be.
Rule 158, Rule 163,
Rule 164, Rule 172,
Rule 405, Rule 415,
Rule 424, Rule 430B,
Rule 433 and Rule 462 refer to such rules under the Act.
Rule 462(b) Registration Statement shall mean a
registration statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in Section 1(i)(a) hereof.
37
If
the foregoing is in accordance with your understanding of our agreement, please
sign and return to us the enclosed duplicate hereof, whereupon this letter and
your acceptance shall represent a binding agreement among the TCP Parties and
the several Underwriters.
|
Very truly yours,
|
|
|
|
TC PipeLines, LP
|
|
|
|
By:
|
TC PipeLines GP, Inc., its general partner
|
|
|
|
|
|
By:
|
/s/ Mark Zimmerman
|
|
|
|
Name:
|
Mark Zimmerman
|
|
|
|
Title:
|
President
|
|
|
|
|
|
|
By:
|
/s/ Rob Jacobucci
|
|
|
|
Name:
|
Rob Jacobucci
|
|
|
|
Title:
|
Controller and Principal Financial Officer
|
|
|
|
|
|
TC PipeLines GP, Inc.
|
|
|
|
By:
|
/s/ Mark Zimmerman
|
|
|
Name:
|
Mark Zimmerman
|
|
|
Title:
|
President
|
|
|
|
|
By:
|
/s/ Rob Jacobucci
|
|
|
Name:
|
Rob Jacobucci
|
|
|
Title:
|
Controller and Principal Financial Officer
|
|
|
|
|
|
|
Accepted:
Citigroup
Global Markets Inc.
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
Morgan
Stanley & Co. Incorporated
UBS
Securities LLC
For themselves and as
Representatives of the several Underwriters named in Schedule I hereto
By: Citigroup Global Markets Inc.
|
|
|
|
|
|
By:
|
/s/
Trevor Heinzinger
|
|
|
Name:
|
Trevor
Heinzinger
|
|
|
Title:
|
Director
|
|
|
|
|
|
By: Merrill Lynch, Pierce,
Fenner & Smith Incorporated
|
|
|
|
|
|
By:
|
/s/
J.D. Moriarty
|
|
|
Name:
|
J.D.
Moriarty
|
|
|
Title:
|
Managing
Director
|
|
|
|
|
|
By: Morgan
Stanley & Co. Incorporated
|
|
|
|
|
|
By:
|
/s/
Kenneth G. Pott
|
|
|
Name:
|
Kenneth
G. Pott
|
|
|
Title:
|
Managing
Director
|
|
|
|
|
|
By: UBS
Securities LLC
|
|
|
|
|
|
By:
|
/s/ Kenneth F. Owen
|
|
|
Name:
|
Kenneth F. Owen
|
|
|
Title:
|
Director
|
|
|
|
|
|
By:
|
/s/
Robert Waldron
|
|
|
Name:
|
Robert
Waldron
|
|
|
Title:
|
Associate Director
|
|
SCHEDULE 1
Underwriters
|
|
Number of Firm Units to be Purchased
|
|
Citigroup Global Markets Inc.
|
|
1,100,000
|
|
Merrill, Lynch, Pierce, Fenner & Smith
Incorporated
|
|
1,100,000
|
|
Morgan Stanley & Co. Incorporated
|
|
1,100,000
|
|
UBS Securities LLC
|
|
1,100,000
|
|
J.P. Morgan Securities Inc.
|
|
300,000
|
|
Wells Fargo Securities, LLC
|
|
300,000
|
|
Total
|
|
5,000,000
|
|
SCHEDULE 2
Additional Pricing
Disclosure Package
Pricing
Information:
|
|
|
|
Number
of Units:
|
5,000,000
Firm Units or, if the Underwriters exercise in full their option to purchase
additional Units granted in Section 2 hereof, 5,750,000 Units
|
|
|
Public offering price for
the Units:
|
$38.00 per unit
|
SCHEDULE 3
Permitted Free Writing
Prospectuses
None
[Form of Lock-Up Agreement]
|
EXHIBIT A
|
TC PipeLines, LP
Public Offering of Common Units
November 13,
2009
Citigroup
Global Markets Inc.
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
Morgan
Stanley & Co. Incorporated
UBS
Securities LLC
As
Representatives of the several
Underwriters
named in Schedule 1 attached hereto
c/o
Citigroup Global Markets Inc.
388
Greenwich Street
New
York, New York 10013
Ladies and Gentlemen:
This letter is being
delivered to you in connection with the proposed Underwriting Agreement (the Underwriting
Agreement), between TC PipeLines, LP, a Delaware limited partnership (the Partnership),
TC PipeLines GP, Inc., a Delaware corporation, TC GP Intermediate Limited
Partnership, a Delaware limited partnership, TC GL Intermediate Limited
Partnership, a Delaware limited partnership, TC PipeLines Intermediate Limited
Partnership, a Delaware limited partnership, TC Tuscarora Intermediate Limited
Partnership, a Delaware limited partnership, and the Underwriters named therein,
relating to an underwritten public offering of Common Units representing
limited partner interests in the Partnership (the Common Units).
In order to induce you and
the other Underwriters to enter into the Underwriting Agreement, the
undersigned will not, without the prior written consent of the Representatives
offer, sell, contract to sell, pledge or otherwise dispose of, (or enter into
any transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the undersigned or any
affiliate of the undersigned or any person in privity with the undersigned or
any affiliate of the undersigned), directly or indirectly, including the filing
(or participation in the filing) of a registration statement with the
Securities and Exchange Commission in respect of, or establish or increase a
put equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder with respect to, any securities of the
Partnership or any Units convertible into, or exercisable or exchangeable for
such capital stock, or publicly announce an intention to effect any such
transaction, for a period of 60 days after the date of the Underwriting
Agreement (the Lock-up Period), other than Common Units disposed of as bona
fide gifts approved by the Representatives.
Notwithstanding the
foregoing, if (1) during the last 17 days of the Lock-up Period, the
Partnership issues an earnings release or material news or a material event
relating to the Partnership occurs or (2) prior to the expiration of the
Lock-up Period, the Partnership announces that it will release earnings results
during the 16-day period beginning on the last day of the Lock-up Period, then
the restrictions imposed by this agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the announcement of the material news or the occurrence of the
material event, unless the Representatives waive, in writing, such extension.
In furtherance of the foregoing,
the Partnership and its transfer agent are hereby authorized to decline to make
any transfer of securities if such transfer would constitute a violation or
breach of this agreement. In addition,
the undersigned agrees that, without the prior written consent of the
Representatives, it will not, during the Lock-up Period make any demand for or
exercise any right with respect to the registration of any Common Units or any
security convertible into or exercisable or exchangeable for Common Units.
If for any reason the
Underwriting Agreement shall be terminated prior to the Closing Date (as
defined in the Underwriting Agreement), the agreement set forth above shall
likewise be terminated.
2
Exhibit B
States of Foreign Qualification
TC PipeLines, LP
New
York
TC PipeLines GP, Inc.
California
Illinois
Iowa
Minnesota
Montana
Nebraska
Nevada
New
York
North
Dakota
Oregon
South
Dakota
Texas
TC GL Intermediate Limited Partnership
None
TC PipeLines Intermediate Limited Partnership
Illinois
Iowa
Minnesota
Montana
Nebraska
New
York
North
Dakota
South
Dakota
Texas
TC Tuscarora Intermediate Limited Partnership
California
Nevada
Oregon
Great Lakes Gas Transmission Limited Partnership
None
Northern Border Pipeline Company
None
North Baja Pipeline, LLC
Arizona
California
Oregon
Exhibit 5.1
November 13, 2009
TC PipeLines, LP
13710
FNB Parkway
Omaha,
NE 68154-5200
Re: TC PipeLines, LP
We have acted as special
counsel to TC PipeLines, LP, a Delaware limited partnership (the Partnership),
and TC PipeLines GP, Inc., a Delaware corporation and the general
partner of the Partnership (the General Partner), in connection with
registration by the Partnership under the Securities Act of 1933, as amended
(the Act), of the offer and sale by the Partnership of up to 5,750,000
common units (including up to 750,000 common units which may be issued upon the
exercise of an over-allotment option) representing limited partnership
interests in the Partnership (the Common Units) pursuant to that
certain Underwriting Agreement, dated November 13, 2009, relating to the
offering and sale of the Common Units (the Underwriting Agreement) by
and among Partnership and the several underwriters named therein (the Underwriters).
In arriving at the
opinions expressed below, we have examined: (i) the Registration Statement
on Form S-3 (File No. 333-156114) with respect to the Common Units
being sold by the Partnership (the Registration Statement); (ii) the
Prospectus, dated December 24, 2008 (the Prospectus) included in
the Registration Statement; (iii) the preliminary prospectus supplement,
dated November 12, 2009 (the Preliminary Prospectus Supplement); (iv) the
prospectus supplement, November 13, 2009 (the Prospectus Supplement); (v) the
Certificate of Limited Partnership and the Amended and Restated Agreement of
Limited Partnership of the Partnership, as amended to date (the Limited
Partnership Agreement); (vi) the Certificate of Incorporation and the
Bylaws of the General Partner, as amended to date; (vii) certified copies
of the resolutions adopted by the Board of Directors of the General Partner,
dated August 24, 2009 and (viii) the originals or copies certified or
otherwise identified to our satisfaction of such other instruments and other
certificates of public officials, officers and representatives of the
Partnership and the General Partner and such other persons, and we have made
such investigations of law, as we have deemed appropriate as a basis for the
opinions expressed below.
In rendering the opinions
expressed below, we have assumed and have not verified (i) the genuineness
of the signatures on all documents that we have examined, (ii) the legal
capacity of all natural persons, (iii) the authenticity of all the
documents supplied to us as originals and (iv) the conformity to the
authentic originals of all documents supplied to us as certified, photostatic,
faxed or conformed copies.
In connection with this
opinion, we have assumed that all Common Units will be issued and sold in
compliance in the manner stated in the Registration Statement, the Prospectus,
the Preliminary Prospectus Supplement and the Prospectus Supplement.
Based on and subject to
the foregoing, and subject also to the limitations and other qualifications set
forth below, we are of the opinion that when the Common Units have been
issued and delivered in accordance with the terms of the Underwriting
Agreement, upon payment (or delivery) of the consideration therefor provided
for therein, such Common Units will be validly issued, fully paid and
nonassessable, except as provided in Section 17-303(a) and 17-607
of the Delaware Limited Partnership Act.
We express no opinion
other than as to the federal laws of the United States of America, the
Delaware Limited Partnership Act (the DLPA), applicable provisions of
the Delaware Constitution and reported Delaware state judicial decisions
interpreting the DLPA and the applicable provisions of the Delaware
Constitution.
We hereby consent to the
filing of this opinion as Exhibit 5.1 to the Current Report on Form 8-K
of the Partnership dated on or about the date hereof, to the incorporation by
reference of this opinion into the Registration Statement and to the reference
to this firm under the heading Legal in the Prospectus. In giving this
consent, we do not admit that we are experts under the Act, or the rules and
regulations of the Commission issued thereunder, with respect to any part of
the Registration Statement, including this exhibit.
Very truly yours,
/s/ ORRICK,
HERRINGTON & SUTCLIFFE LLP
2
Exhibit 8.1
November 13, 2009
TC PipeLines, LP
13710
FNB Parkway
Omaha, NE 68154-5200
Re: TC PipeLines, LP
Registration
Statement on Form S-3
Ladies
and Gentlemen:
We have acted as special
counsel to TC PipeLines, LP, a Delaware limited partnership (the Partnership),
in connection with (i) the preparation and filing with the Securities and
Exchange Commission (the Commission) under the Securities Act of
1933, as amended (the Act), of the Registration Statement on Form S-3
(File No. 333-156114) filed by the Partnership with the Commission, which
Registration Statement was declared effective by the Commission on December 24, 2008 (the Registration
Statement), for the purpose of registering under the Act, among other
securities, common units representing limited partner interests in the
Partnership and (ii) in the preparation of a prospectus supplement (the Prospectus
Supplement) filed with the Commission in accordance with Rule 424(b)(5) under
the Act, on November 13,
2009 and a preliminary prospectus supplement (the Preliminary Prospectus
Supplement) filed with the Commission in accordance with Rule 424(b)(5) under
the Act on November 12,
2009, in connection with the offer and sale (the Offering) of up
to an aggregate of 5,750,000 common units (including up to 750,000 common units
which may be issued upon the exercise of an over-allotment option) representing
limited partner interests in the Partnership (the Common Units).
In connection therewith, we have participated in the preparation of the
discussion set forth under the caption Tax
Considerations in the Registration Statement and under the caption Tax
Consequences in the Prospectus Supplement and Preliminary Prospectus
Supplement (collectively, the Discussions). Capitalized terms used and
not otherwise defined herein are used as defined in the
Registration Statement.
All statements of legal
conclusions contained in the Discussions, unless otherwise noted, are our
opinion with respect to the matters set forth therein (i) as of the date
of the Prospectus Supplement and Preliminary Prospectus Supplement in respect
of the discussion set forth under the caption Tax Consequences and (ii) as
of the date of the Registration Statement in respect of the discussion set
forth under the caption Tax Considerations, subject to the qualifications and
assumptions stated in the Discussions. In addition, we are of the opinion that the
Discussions with respect to those matters as to which no legal conclusions are
provided are accurate discussions of such federal income tax matters (except
for the representations and statements of fact of the Partnership and its
general partner, included in the Discussions, as to which we express no
opinion).
This opinion letter is
limited to the matters set forth herein, and no opinions are intended to be
implied or may be inferred beyond those expressly stated herein. Our opinion is
rendered as of the date hereof and we assume no obligation to update or
supplement this opinion or any matter related to this opinion to reflect any
change of fact, circumstances, or law after the date hereof. Furthermore, our
opinion is not binding on the Internal Revenue Service or a court. In addition,
we must note that our opinion represents merely our best legal judgment on the
matters presented and that others may disagree with our conclusion. There can
be no assurance that the Internal Revenue Service will not take a contrary
position or that a court would agree with our opinion if litigated.
We hereby consent to the
filing of this opinion as an exhibit to the Current Report on Form 8-K
and to the references to our firm and this opinion contained in the Discussions.
In giving this consent, however, we do not hereby admit that we are we are experts
under the Act or under the rules and regulations of the Commission
relating thereto, with respect to any part of the Registration Statement,
including this exhibit to the Current Report on Form 8-K.
Very truly yours,
/s/ ORRICK,
HERRINGTON & SUTCLIFFE LLP
2
Exhibit
99.1
News Release
TC PipeLines, LP Prices Offering of Common Units
OMAHA,
Nebraska November 13, 2009 (Nasdaq:
TCLP) TC PipeLines, LP (the Partnership) today announced that it has priced
the public offering of 5,000,000 common units at $38.00 per unit. The offering, announced on November 12,
2009 is expected to close on November 18, 2009. TC PipeLines, LP has
granted a syndicate of underwriters led by Citigroup Global Markets Inc., BofA
Merrill Lynch, Morgan Stanley and UBS Investment Bank, who will act as joint
book-running managers of the offering, a 30-day option to purchase up to an
additional 750,000 common units to cover over-allotments, if any.
The
Partnership expects to receive net proceeds of approximately $185.4 million or
$213.3 million if the underwriters exercise their option to purchase an
additional 750,000 common units from the offering. The net proceeds include a
capital contribution from its general partner to maintain its two per cent
interest in the Partnership. In addition,
the net proceeds of the offering are expected to be used to reduce debt
outstanding under the Partnerships revolving credit facility and for general Partnership
purposes.
The offering is being made under the
Partnerships existing shelf registration statement. With the close of this offering and assuming the
underwriters do not exercise their option to purchase additional units,
TransCanada Corporations ownership of the Partnership will be approximately 38.2
per cent.
This
news release does not constitute an offer to sell or a solicitation of an offer
to buy the limited partnership interests described herein, nor shall there be
any sale of these limited partnership interests in any state or jurisdiction in
which such an offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such
jurisdiction. The offering may be made only by means of a prospectus and
related prospectus supplement.
A
copy of the prospectus supplement and prospectus relating to the offering, when
available, may be obtained from the following addresses:
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Citi
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BofA Merrill Lynch
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Brooklyn Army Terminal
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4 World Financial
Centre
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140 58th Street, 8th Floor
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New York, NY 10080
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Brooklyn, NY 11220
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Attention: Preliminary Prospectus
Department
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Toll free: 800-831-9146
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Prospectus.Requests@ml.com
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batprospectusdept@citi.com
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Morgan Stanley
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UBS Investment Bank
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Attention: Prospectus
Department
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Attention: Prospectus
Department
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180 Varick Street, 2nd Floor
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299 Park Avenue
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New York, NY 10014
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New York, NY 10171
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TC
PipeLines, LP has interests in approximately 3,700 miles of federally regulated
U.S. interstate natural gas pipelines, including Great Lakes Gas Transmission
Limited Partnership (46.45 per cent ownership), Northern Border Pipeline
Company (50 per cent ownership), North Baja Pipeline, LLC (100 per cent
ownership) and Tuscarora Gas Transmission Company (100 per cent ownership).
Great Lakes is a 2,115-mile pipeline serving markets in Minnesota, Wisconsin,
Michigan and eastern Canada. The 1,249-mile Northern Border Pipeline transports
natural gas from the Montana-Saskatchewan border to markets in the midwestern
United States. North Baja is an 80-mile bi-directional natural gas pipeline
that extends from southwestern Arizona to a point on the California/Mexico
border and connects with a natural gas pipeline system in Mexico. Tuscarora is a
240-mile pipeline system that transports natural gas from Oregon, where it
interconnects TransCanadas Gas Transmission Northwest System, to markets in
Oregon, Northern California, and Northwestern Nevada. TC PipeLines, LP is
managed by its general partner, TC PipeLines GP, Inc., an indirect wholly
owned subsidiary of TransCanada Corporation. TC PipeLines GP, Inc. also
holds common units of TC PipeLines, LP. Common units of TC PipeLines, LP are
quoted on the NASDAQ Stock Market and trade under the symbol TCLP. For more
information about TC PipeLines, LP, visit the Partnerships website at
www.tcpipelineslp.com.
Cautionary Statement Regarding Forward-Looking
Information
This news release may
include forward-looking statements regarding future events and the future
financial performance of TC PipeLines, LP. Words such as believes, expects,
intends, forecasts,
projects, and similar
expressions identify forward-looking statements. All forward-looking statements
are based on the Partnerships current beliefs as well as assumptions made by
and information currently available to the Partnership. These statements
reflect the Partnerships current views with respect to future events. The
Partnership assumes no obligation to update any such forward-looking statements
to reflect events or circumstances occurring after the date hereof. Important
factors that could cause actual results to materially differ from the
Partnerships current expectations include the risk of a prolonged slowdown in
growth or decline in the U.S. economy or the risk of delay in growth recovery
in the U.S. economy, regulatory decisions, particularly those of the Federal
Energy Regulatory Commission, the ability of Great Lakes and Northern Border to
recontract their available capacity on competitive terms, the Partnerships
ability to identify and/or consummate accretive growth opportunities from
TransCanada or others, the ability to access capital and credit markets with
competitive rates and terms, decisions by the operator of Northern Border,
Great Lakes, North Baja and Tuscarora, the failure of a shipper on any one of
the Partnerships pipelines to perform its contractual obligations, supply of
natural gas in the Western Canada sedimentary basin and in competing basins,
such as the Rocky Mountains, future demand for natural gas, overcapacity in the
industry, success of other pipelines competing with Northern Border and Great
Lakes by bringing competing U.S. sourced gas to Northern Borders and Great
Lakes markets, and other risks inherent in the transportation of natural gas
as discussed in the Partnerships filings with the Securities and Exchange
Commission, including the Partnerships Annual Report on Form 10-K for the
year ended December 31, 2008 and the Partnerships Quarterly Reports on Form 10-Q
for the quarters ended March 31, June 30 and September 30, 2009.
-30-
Media Inquiries: Cecily Dobson/Terry Cunha (403)
920-7859 (800) 608-7859
Unitholder and Analyst Inquiries: Terry Hook (877)
290-2772 Investor_relations@tcpipelineslp.com