Common use of EA Call Option Clause in Contracts

EA Call Option. (a) From time to time prior to the twelve-month anniversary of the Eastern Access Final In-Service Date (the “EA Call Option Deadline”), Enbridge Partners shall have the right to purchase, and EECI shall have the obligation to sell (the “EA Call Option”), a portion of the Series EA Limited Partner Interests held by EECI that represents, in the aggregate, up to fifteen percent (15%) of the total outstanding Series EA Partnership Interests in accordance with this Section 4.9. In considering whether to exercise the EA Call Option, the Board of Directors of Enbridge Energy Management, L.L.C. (the “EEM Board”) shall establish a committee of independent directors (an “Option Committee”) to make a recommendation to the EEM Board, on behalf of Enbridge Partners, whether to exercise the EA Call Option and the portion of Series EA Limited Partner Interests held by EECI that Enbridge Partners will purchase if the EA Call Option is exercised (not to exceed, in the aggregate, fifteen (15%) of the total outstanding Series EA Partnership Interests). The general partner of Enbridge Partners and the Managing General Partner of the Partnership and of each Series shall provide the Option Committee with all of the information that the Option Committee may reasonably request that is relevant to its determination. (b) If the EEM Board determines to exercise all or a portion of the EA Call Option following receipt of the Option Committee’s recommendation, Enbridge Partners shall deliver to the Partnership and to EECI, prior to the EA Call Option Deadline, written notice (each, an “EA Call Option Notice”) of such determination. Each EA Call Option Notice shall state (i) the portion of the Series EA Limited Partner Interests held by EECI proposed to be purchased (not to exceed, in the aggregate, fifteen percent (15%) of the total outstanding Series EA Partnership Interests) (an “EA Call Option Interest”) and the corresponding amount of consideration to be paid, calculated in accordance with Section 4.9(c), (ii) the proposed date of purchase and (iii) other proposed material terms and conditions of such sale. Upon receipt of each EA Call Option Notice, EECI agrees to promptly take all necessary and desirable actions in connection with the exercise of the EA Call Option reasonably requested by Enbridge Partners, including the execution of such agreements and such instruments and other actions reasonably necessary to consummate the purchase and sale of the EA Call Option Interest hereunder. Each date on which the purchase and sale of an EA Call Option Interest is consummated is referred to as an “EA Call Option Closing Date.” Such agreements and instruments shall contain customary representations and warranties concerning (i) EECI’s valid title to and ownership of the EA Call Option Interest, free and clear of all liens, claims and encumbrances (excluding those arising under this Agreement and applicable securities laws), (ii) EECI’s authority, power and right to enter into and consummate the sale of the EA Call Option Interest, (iii) the absence of any violation, default or acceleration of any agreement to which EECI is subject or by which its Partnership Interests are bound as a result of the agreement to sell and the sale of the EA Call Option Interest, and (iv) the absence of, or compliance with, any governmental or third party consents, approvals, filings or notifications required to be obtained or made by EECI in connection with the sale of the EA Call Option Interest. EECI shall execute and deliver such instruments and documents and take such actions, including obtaining all applicable approvals and consents and making all applicable notifications and filings, as Enbridge Partners may reasonably request, but neither the failure of EECI to execute or deliver any such documentation nor the failure of EECI to comply with all required actions shall affect the validity of a purchase and sale pursuant to this Section 4.9. (c) The purchase price to be paid by Enbridge Partners to EECI for the purchase of an EA Call Option Interest shall equal the capital contributed by EECI in respect of such EA Call Option Interest, plus the product of (i) the AFUDC attributable to the Eastern Access Project, less depreciation attributable to the Eastern Access Project, in each case, for the period from the Series EA Closing Date through the applicable EA Call Option Closing Date, and (ii) the quotient, expressed as a percentage, obtained by dividing the EA Call Option Interest by the total outstanding Series EA Partnership Interests. For illustrative purposes, an example of this calculation methodology is attached hereto as Exhibit F. (d) If and to the extent that any distributions accruing on an EA Call Option Interest that are attributable to the operations of the Series EA prior to the applicable EA Call Option Closing Date are declared or paid on or after such EA Call Option Closing Date, EECI shall be entitled to receive, and the Partnership shall pay to EECI, subject to the Delaware Act, (i) with respect to a Quarter ending prior to the Quarter in which the EA Call Option Closing Date occurs for which distributions on the Series EA Partnership Interests have not been declared and/or paid as of the EA Call Option Closing Date, an amount equal to the distributions attributable to the EA Call Option Interest with respect to such Quarter and (ii) with respect to a Quarter in which the EA Call Option Closing Date occurs, an amount equal to the product of (x) the distributions attributable to the EA Call Option Interest with respect to such Quarter and (y) the quotient obtained by dividing the number of days the EA Call Option Interest was held by EECI during such Quarter by the total number of days in such Quarter.

EA Call Option. (a) From time to time prior to the twelve-month anniversary of the Eastern Access Final In-Service Date (the “EA Call Option Deadline”), Enbridge Partners shall have the right to purchase, and EECI shall have the obligation to sell (the “EA Call Option”), a portion of the Series EA Limited Partner Interests held by EECI that represents, in the aggregate, up to fifteen percent (15%) of the total outstanding Series EA Partnership Interests in accordance with this Section 4.94.10. In considering whether to exercise the EA Call Option, the Board of Directors of Enbridge Energy Management, L.L.C. (the “EEM Board”) shall establish a committee of independent directors (an “Option Committee”) to make a recommendation to the EEM Board, on behalf of Enbridge Partners, whether to exercise the EA Call Option and the portion of Series EA Limited Partner Interests held by EECI that Enbridge Partners will purchase if the EA Call Option is exercised (not to exceed, in the aggregate, fifteen (15%) of the total outstanding Series EA Partnership Interests). The general partner of Enbridge Partners and the Managing General Partner of the Partnership and of each Series shall provide the Option Committee with all of the information that the Option Committee may reasonably request that is relevant to its determination. (b) If the EEM Board determines to exercise all or a portion of the EA Call Option following receipt of the Option Committee’s recommendation, Enbridge Partners shall deliver to the Partnership and to EECI, prior to the EA Call Option Deadline, written notice (each, an “EA Call Option Notice”) of such determination. Each EA Call Option Notice shall state (i) the portion of the Series EA Limited Partner Interests held by EECI proposed to be purchased (not to exceed, in the aggregate, fifteen percent (15%) of the total outstanding Series EA Partnership Interests) (an “EA Call Option Interest”) and the corresponding amount of consideration to be paid, calculated in accordance with Section 4.9(c4.10(c), (ii) the proposed date of purchase and (iii) other proposed material terms and conditions of such sale. Upon receipt of each EA Call Option Notice, EECI agrees to promptly take all necessary and desirable actions in connection with the exercise of the EA Call Option reasonably requested by Enbridge Partners, including the execution of such agreements and such instruments and other actions reasonably necessary to consummate the purchase and sale of the EA Call Option Interest hereunder. Each date on which the purchase and sale of an EA Call Option Interest is consummated is referred to as an “EA Call Option Closing Date.” Such agreements and instruments shall contain customary representations and warranties concerning (i) EECI’s valid title to and ownership of the EA Call Option Interest, free and clear of all liens, claims and encumbrances (excluding those arising under this Agreement and applicable securities laws), (ii) EECI’s authority, power and right to enter into and consummate the sale of the EA Call Option Interest, (iii) the absence of any violation, default or acceleration of any agreement to which EECI is subject or by which its Partnership Interests are bound as a result of the agreement to sell and the sale of the EA Call Option Interest, and (iv) the absence of, or compliance with, any governmental or third party consents, approvals, filings or notifications required to be obtained or made by EECI in connection with the sale of the EA Call Option Interest. EECI shall execute and deliver such instruments and documents and take such actions, including obtaining all applicable approvals and consents and making all applicable notifications and filings, as Enbridge Partners may reasonably request, but neither the failure of EECI to execute or deliver any such documentation nor the failure of EECI to comply with all required actions shall affect the validity of a purchase and sale pursuant to this Section 4.94.10. (c) The purchase price to be paid by Enbridge Partners to EECI for the purchase of an EA Call Option Interest shall equal the capital contributed by EECI in respect of such EA Call Option Interest, plus the product of (i) the AFUDC attributable to the Eastern Access Project, less depreciation attributable to the Eastern Access Project, in each case, for the period from the Series EA Closing Date through the applicable EA Call Option Closing Date, and (ii) the quotient, expressed as a percentage, obtained by dividing the EA Call Option Interest by the total outstanding Series EA Partnership Interests. For illustrative purposes, an example of this calculation methodology is attached hereto as Exhibit F.G. (d) If and to the extent that any distributions accruing on an EA Call Option Interest that are attributable to the operations of the Series EA prior to the applicable EA Call Option Closing Date are declared or paid on or after such EA Call Option Closing Date, EECI shall be entitled to receive, and the Partnership shall pay to EECI, subject to the Delaware Act, (i) with respect to a Quarter ending prior to the Quarter in which the EA Call Option Closing Date occurs for which distributions on the Series EA Partnership Interests have not been declared and/or paid as of the EA Call Option Closing Date, an amount equal to the distributions attributable to the EA Call Option Interest with respect to such Quarter and (ii) with respect to a Quarter in which the EA Call Option Closing Date occurs, an amount equal to the product of (x) the distributions attributable to the EA Call Option Interest with respect to such Quarter and (y) the quotient obtained by dividing the number of days the EA Call Option Interest was held by EECI during such Quarter by the total number of days in such Quarter.