EXHIBIT 10.4
AMENDED AND RESTATED TREASURY
SERVICES AGREEMENT
DATED AS OF [_________________], 2002
AMONG
ENBRIDGE INC.
ENBRIDGE ENERGY COMPANY, INC.
AND
ENBRIDGE ENERGY MANAGEMENT, L.L.C.
AMENDED AND RESTATED TREASURY SERVICES AGREEMENT
This AMENDED AND RESTATED TREASURY SERVICES AGREEMENT (this
"AGREEMENT") is made as of [__________], 2002 (the "EFFECTIVE DATE"),
among Enbridge Inc. (f/k/a IPL Energy Inc.), a Canadian corporation
("ENBRIDGE"), Enbridge Energy Company, Inc. (f/k/a Lakehead Pipe Line
Company, Inc.), a Delaware corporation ("EECI"), and Enbridge Energy
Management, L.L.C., a Delaware limited liability company ("MANAGEMENT").
RECITALS
WHEREAS, Enbridge and EECI are parties to that certain Treasury Services
Agreement dated as of January 1, 1996 (the "Treasury Services Agreement")
pursuant to which Enbridge provides to EECI certain treasury services; and
WHEREAS, EECI is the sole general partner of Enbridge Energy
Partners, L.P. (f/k/a Lakehead Pipe Line Partners, L.P.), a Delaware
limited partnership (the "MLP"); and
WHEREAS, pursuant to a Delegation of Control Agreement among Management,
EECI and the MLP dated as of even date herewith, EECI has delegated to
Management the power and authority to manage and control the business and
affairs of the MLP; and
WHEREAS, the parties desire to amend and restate the Treasury Services
Agreement as set forth herein to make Management a party so that the services
provided by Enbridge under this Agreement for the benefit of the MLP will be
provided to Management; and
WHEREAS, Enbridge will continue to provide certain services under this
Agreement to EECI in its individual capacity.
NOW, THEREFORE, for and in consideration of the mutual covenants contained
in this Agreement, the parties hereto hereby agree to amend and restate the
Treasury Services Agreement as follows:
ARTICLE I
PROVISION OF SERVICES
SECTION 1.1 PROVISION OF SERVICES.
(a) Enbridge shall provide the services set forth on EXHIBIT A (the
"TREASURY SERVICES") to Management in connection with Management's management
and control of the MLP.
(b) Enbridge shall provide such of the Treasury Services to EECI as
EECI shall request from time to time.
(c) The services to be provided hereunder shall be provided from
time to time at such times and pursuant to such instructions and specifications
as Management and EECI shall provide.
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SECTION 1.2 FEES.
(a) Commencing on the Effective Date of this Agreement and ending on
December 31, 2002, and for each fiscal year of Management thereafter, Management
shall pay to Enbridge an annual fee equal to the product of Enbridge's total
forecasted North American treasury expenses for Enbridge's corresponding fiscal
year, multiplied by a percentage equal to the following:
(i) the percentage amount of North American treasury
expenses attributable to Management in the prior year; or
(ii) if either party proposes a variation to the percentage
amount from that used for the previous year, a percentage amount mutually agreed
upon by the Vice-President and Treasurer of Enbridge and the Controller of
Management.
(b) Commencing on the Effective Date of this Agreement and ending on
December 31, 2002, and for each fiscal year of EECI thereafter, EECI shall pay
to Enbridge an annual fee equal to the product of Enbridge's total forecasted
North American treasury expenses for Enbridge's corresponding fiscal year,
multiplied by a percentage equal to the following:
(i) the percentage amount of North American treasury
expenses attributable to EECI in the prior year; or
(ii) if either party proposes a variation to the percentage
amount from that used for the previous fiscal year, a percentage amount mutually
agreed upon by the Vice-President and Treasurer of Enbridge and the Controller
of EECI.
(c) The percentage amount to be borne by Management and EECI will
reflect a fair and reasonable allocation to each of them of the total treasury
expenses for the applicable year. If material, an adjustment will be made for
the difference between the year's actual treasury expenses compared to the
year's forecasted treasury expenses.
(d) Any fees payable hereunder for periods less than a full fiscal
year shall be prorated for the period services were provided based on the actual
number of days elapsed and a year of 365 days.
SECTION 1.3 PAYMENT OF FEES.
(a) The fees to be paid pursuant to SECTION 1.2 shall be paid by
Management and EECI in 12 equal monthly installments within 30 days of receiving
a communication from Enbridge regarding fees for the Treasury Services.
(b) For services attributable to the MLP, Enbridge shall, at
Management's request, directly xxxx the MLP for such services.
SECTION 1.4 TERM. The provisions of this Article I will apply in respect
of treasury expenses until this Agreement is terminated or amended in accordance
with SECTION 2.1 or SECTION 2.17, respectively.
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SECTION 1.5 U.S. DOLLARS. All amounts payable under this Agreement are
expressed, and shall be paid, in U.S. dollars.
ARTICLE II
MISCELLANEOUS
SECTION 2.1 TERMINATION. The obligations of a party to this Agreement may
be terminated by such party upon 30 days' prior written notice to the other
parties. Such termination shall not relieve a terminating party of its
obligations up to and including the date of termination.
SECTION 2.2 NO JOINT VENTURE. This Agreement is not intended to create,
and shall not be construed as creating, any relationship of partnership, agency,
joint venture or association for profit between the parties.
SECTION 2.3 NO FIDUCIARY DUTIES. The parties hereto shall not have any
fiduciary obligations or duties to the other parties by reason of this
Agreement. Subject to the Omnibus Agreement among EECI, the MLP, Enbridge
Pipelines Inc. and Management dated as of even date herewith, any party hereto
may conduct any activity or business for its own profit whether or not such
activity or business is in competition with any activity or business of the
other party.
SECTION 2.4 LIMITATION OF DAMAGES. In providing the Treasury Services,
Enbridge shall not be liable for damages to Management or EECI for any delays or
errors in providing the Treasury Services or for loss of data or records save
and except where said delays or errors are the result of the willful misconduct,
gross negligence or breach of this Agreement by Enbridge or its agents.
SECTION 2.5 NO REPRESENTATIONS OR WARRANTIES. The Treasury Services shall
be provided on the basis that Enbridge does not make any warranties or
representations, express or implied, with respect to the Treasury Services save
and except that the Treasury Services shall be provided by qualified personnel
in a professional and timely manner.
SECTION 2.6 RELEASE. Management and EECI hereby release Enbridge from any
claims which they may have with respect to the provision of the Treasury
Services unless such claims are the result of the willful misconduct or gross
negligence of Enbridge or a breach of this Agreement by Enbridge.
SECTION 2.7 INDEMNIFICATION. Management and EECI shall indemnify and hold
Enbridge harmless from and against any loss, damage, claim, liability, debt,
obligation or expense (including reasonable legal fees and disbursements)
incurred or suffered by Enbridge and relating in any way to this Agreement or
the provision of the Treasury Services, excluding any loss, damage, claim,
liability, debt, obligation or expense resulting from or arising from or in
connection with a negligent act or omission of Enbridge or a breach of this
Agreement by Enbridge.
SECTION 2.8 FORCE MAJEURE. If any party to this Agreement is rendered
unable by force majeure to carry out its obligations under this Agreement, other
than Management's or EECI's obligation to make payments to Enbridge as provided
for herein, that party shall give the other parties prompt written notice of the
force majeure with reasonably full particulars
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concerning it. Thereupon, the obligations of the party giving the notice,
insofar as they are affected by the force majeure, shall be suspended during,
but no longer than the continuance of, the force majeure. The affected party
shall use all reasonable diligence to remove or remedy the force majeure
situation as quickly as practicable.
The requirement that any force majeure situation be removed or remedied
with all reasonable diligence shall not require the settlement of strikes,
lockouts or other labour difficulty by the party involved, contrary to its
wishes. Rather, all such difficulties, may be handled entirely within the
discretion of the party concerned.
The term "force majeure" means any one or more of:
(a) an act of God;
(b) a strike, lockout, labour difficulty or other
industrial disturbance;
(c) an act of a public enemy, war, blockade, insurrection
or public riot;
(d) lightning, fire, storm, flood or explosion;
(e) governmental action, delay, restraint or inaction;
(f) judicial order or injunction;
(g) material shortage or unavailability of equipment; or
(h) any other cause or event, whether of the kind specifically
enumerated above or otherwise, which is not reasonably within the control of the
party claiming suspension.
SECTION 2.9 FURTHER ACTS. Each party shall from time to time, and at all
times, do such further acts and execute and deliver all such further deeds and
documents as shall be reasonably requested by another party in order to fully
perform and carry out the terms of this Agreement.
SECTION 2.10 TIME OF THE ESSENCE. Time is of the essence in this
Agreement.
SECTION 2.11 NOTICES. Any notice, request, demand, direction or other
communication required or permitted to be given or made under this Agreement to
a party shall be in writing and may be given by hand delivery, postage prepaid
first-class mail delivery, delivery by a reputable international courier service
guaranteeing next business day delivery or by facsimile (if confirmed by one of
the foregoing methods) to such party at its address noted below:
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(a) in the case of Enbridge, to:
Enbridge Inc.
0000 000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Vice-President, Finance
Facsimile: (000) 000-0000
(b) in the case of EECI, to:
Enbridge Energy Company, Inc.
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: President
Facsimile: (000) 000-0000
(c) in the case of Management, to:
Enbridge Energy Management, L.L.C.
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: President
Facsimile: (000) 000-0000
or at such other address of which notice may have been given by such party in
accordance with the provisions of this Section.
SECTION 2.12 COUNTERPARTS. This Agreement may be executed in several
counterparts, no one of which needs to be executed by all of the parties. Such
counterpart, including a facsimile transmission of this Agreement, shall be
deemed to be an original and shall have the same force and effect as an
original. All counterparts together shall constitute but one and the same
instrument.
SECTION 2.13 APPLICABLE LAW. The provisions of this Agreement shall be
construed in accordance with the laws of the Province of Alberta and the laws of
Canada applicable therein, excluding any conflicts of law rule or principle that
might refer the construction or interpretation hereof to the laws of another
jurisdiction.
SECTION 2.14 BINDING EFFECT; ASSIGNMENT. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. This Agreement may not be assigned by any
party hereto without the prior written consent of the other party.
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SECTION 2.15 RULES OF CONSTRUCTION. The following provisions shall be
applied wherever appropriate herein:
(i) "herein," "hereby," "hereunder," "hereof," "hereto" and other
equivalent words shall refer to this Agreement as an entirety and not solely to
the particular portion of this Agreement in which any such word is used;
(ii) "including" means "including without limitation" and is a
term of illustration and not of limitation;
(iii) all definitions set forth herein shall be deemed applicable whether
the words defined are used herein in the singular or the plural;
(iv) unless otherwise expressly provided, any term defined herein by
reference to any other document shall be deemed to be amended herein to the
extent that such term is subsequently amended in such document;
(v) references herein to other documents and agreements shall mean such
documents and agreements as amended and restated from time to time;
(vi) wherever used herein, any pronoun or pronouns shall be deemed to
include both the singular and plural and to cover all genders;
(vii) this Agreement shall not be construed against any person as
the principal draftsperson hereof;
(viii) the section headings appearing in this Agreement are inserted only
as a matter of convenience and in no way define, limit, construe or describe the
scope or extent of such Section, or in any way affect this Agreement; and
(ix) any references herein to a particular Section, Article, Exhibit or
Schedule means a Section or Article of, or an Exhibit or Schedule to, this
Agreement unless another agreement is specified.
SECTION 2.16 CONFIDENTIALITY OF INFORMATION.
(a) Each party to this Agreement agrees to keep all information
provided by the other party (the "DISCLOSING PARTY") to it (the "RECEIVING
PARTY") confidential, and a receiving party shall not, without the prior consent
of an authorized senior officer of the disclosing party, disclose any part of
such information which is not available in the public domain from public or
published information or sources except:
(i) to those of its employees who require access to the
information in connection with performance of the Treasury Services by a
receiving party under this Agreement;
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(ii) as in the receiving party's judgment may be appropriate
to be disclosed in connection with the provision by the receiving party of the
Treasury Services hereunder;
(iii) as the receiving party may be required to disclose in
connection with the preparation by the receiving party or any of its affiliates
of reporting documents, including annual financial statements, annual reports
and any filings or disclosure required by statute, regulation or order of a
regulatory authority; and
(iv) to such legal and accounting advisors, valuers and other
experts as in the receiving party's judgment may be appropriate or necessary in
order to permit the receiving party to rely on the services of such persons in
carrying out the receiving party's duties under this Agreement.
(b) The covenants and agreements of the parties to this
Agreement shall not apply to any information:
(i) which is lawfully in the receiving party's possession or
in the possession of its professional advisors or its personnel, as the case may
be, at the time of disclosure and which was not acquired directly or indirectly
from the disclosing party;
(ii) which is at the time of disclosure in, or after
disclosure falls into, the public domain through no fault of the receiving party
or its personnel;
(iii) which, subsequent to disclosure by the disclosing party,
is received by the receiving party from a third party who, insofar as is known
to the receiving party, is lawfully in possession of such information and not in
breach of any contractual, legal or fiduciary obligation to the disclosing party
and who has not required the receiving party to refrain from disclosing such
information to others; and
(iv) disclosure of which the receiving party reasonably deems
necessary to comply with any legal or regulatory obligation which the receiving
party believes in good faith it has.
SECTION 2.17 INTELLECTUAL PROPERTY.
(a) In this SECTION 2.18, "INTELLECTUAL PROPERTY" means the rights
to (i) inventions, (ii) all granted patents for inventions, including reissue
thereof, (iii) copyrights, (iv) industrial designs, (v) trademarks, (vi) trade
secrets, (vii) know-how and (viii) any other industrial or intellectual property
right, in every country where same exists from time to time, all applications
therefor, the right to make applications therefor and the right to claim
priority therefrom as provided by international convention.
(b) All Intellectual Property that is conceived, developed,
produced, substantiated, or first reduced to practice by Enbridge in the course
of performing the Treasury Services pursuant to this Agreement shall accrue to
and be owned by Management or EECI, as the case may be, subject only to the
grantback of a non-exclusive, worldwide, royalty-free, perpetual right and
license to Enbridge to reproduce, translate, modify, revise, make, use and
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have made that Intellectual Property as reasonably required in connection with
the internal business purposes of Enbridge.
SECTION 2.18 INVALIDITY OF PROVISIONS. In the event that one or more of
the provisions contained in this Agreement shall be invalid, illegal or
unenforceable in any respect under any applicable law, the validity, legality or
enforceability of the remaining provisions hereof shall not be affected or
impaired thereby. Each of the provisions of this Agreement is hereby declared to
be separate and distinct.
SECTION 2.19 MODIFICATION; AMENDMENT. Subject to obtaining the necessary
regulatory approvals, this Agreement may not be modified or amended except by an
instrument in writing signed by each of the parties hereto or by their
respective successors or permitted assigns.
SECTION 2.20 ENTIRE AGREEMENT. This Agreement constitutes the whole and
entire agreement between the parties hereto and supersedes any prior agreement,
undertaking, declarations, commitments or representations, verbal or oral, in
respect of the subject matter hereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement with
effect as of the date first above written.
ENBRIDGE INC.
By: ____________________________________
Name: ____________________________________
Title:____________________________________
By: ____________________________________
Name: ____________________________________
Title:____________________________________
ENBRIDGE ENERGY COMPANY, INC.
By: ____________________________________
Name: ____________________________________
Title:____________________________________
ENBRIDGE ENERGY MANAGEMENT, L.L.C.
By: ____________________________________
Name: ____________________________________
Title:____________________________________
SIGNATURE PAGE TO AMENDED AND RESTATED TREASURY SERVICES AGREEMENT
EXHIBIT A
Treasury Services to Management and EECI:
(a) Acting as primary interface between Management/EECI and
financial markets.
(b) Short-term money management (investment of surplus funds and
short-term borrowing).
(c) Servicing long-term debt and equity obligations.
(d) Banking arrangements (compensation, operating lines of credit, letters
of credit, advice on banking and cash management issues).
(e) Advice relating to interest rate, foreign exchange, counterparty
credit and commodity price risk management.
(f) Advice on major lease versus buy financing decisions, and
project financing as required.
(g) Advice on existing public and private debt and the structure and
arrangement of new debt and equity financing as required.
(h) Acting as primary interface with external credit rating
agencies.
(i) Participation in preparation for rate hearings and planning, corporate
finance and cash management issues.
(j) Use of financial systems for maintenance of treasury information,
financial risk management and generation of treasury transaction records.
A-1
