Exhibit 10.7
OMNIBUS AGREEMENT
DATED AS OF [_______________], 2002
AMONG
ENBRIDGE ENERGY COMPANY, INC.
ENBRIDGE ENERGY PARTNERS, L.P.
ENBRIDGE PIPELINES INC.
AND
ENBRIDGE ENERGY MANAGEMENT, L.L.C.
OMNIBUS AGREEMENT
This OMNIBUS AGREEMENT (this "Agreement"), dated as of
[____________], 2002, is entered into among Enbridge Energy Company, Inc.
(f/k/a Lakehead Pipe Line Company, Inc.), a Delaware corporation ("EECI"),
Enbridge Energy Partners, L.P. (f/k/a Lakehead Pipe Line Partners, L.P.),
a Delaware limited partnership (the "MLP"), Enbridge Pipelines Inc. (f/k/a
Interprovincial Pipe Line Inc.), a Canadian corporation ("ENBRIDGE"), and
Enbridge Energy Management, L.L.C., a Delaware limited liability company
("MANAGEMENT").
RECITALS
WHEREAS, the MLP, EECI and Enbridge are parties to that certain
Distribution Support Agreement dated as of December 27, 1991 (the "DISTRIBUTION
SUPPORT AGREEMENT") pursuant to which such parties entered into certain
covenants and agreements with each other in connection with the formation of the
MLP; and
WHEREAS, EECI is the sole general partner of the MLP; and
WHEREAS, pursuant to a Delegation of Control Agreement among Management,
EECI and the MLP dated as of even date herewith (the "DELEGATION OF CONTROL
AGREEMENT"), 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 Distribution Support
Agreement as set forth herein to make Management a party and to make other
changes desired by the parties and permitted under SECTION 6.6 of the
Distribution Support Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants contained
in this Agreement, the parties hereto hereby agree to amend and restate the
Distribution Support Agreement as follows:
ARTICLE I
[RESERVED]
ARTICLE II
DISTRIBUTION SUPPORT
SECTION 2.1. [RESERVED]
SECTION 2.2. [RESERVED]
SECTION 2.3. [RESERVED]
SECTION 2.4. [RESERVED]
SECTION 2.5. [RESERVED]
SECTION 2.6.
(a) [RESERVED]
(b) Enbridge hereby grants to the MLP and Enbridge Energy, Limited
Partnership, a Delaware limited partnership (the "OPERATING PARTNERSHIP"), a
worldwide non-exclusive royalty-free right and license for so long as an
Affiliate of Enbridge serves as general partner of the MLP and the Operating
Partnership, respectively, and to each of their respective subsidiaries, for so
long as such subsidiary is controlled, directly or indirectly, by the MLP or
Operating Partnership, as the case may be, to use (i) the blue oil drop symbol
which has been used in the past by Enbridge and EECI and (ii) the Enbridge
Energy Spiral (the blue oil drop symbol and the Enbridge Energy Spiral being
collectively referred to as the "SYMBOLS") and related goodwill. The MLP and the
Operating Partnership (i) agree to maintain the quality of services provided in
connection with the Symbols to a level at least as high as the quality standards
of Enbridge in its use of the Symbols and (ii) acknowledge that Enbridge is the
owner of the Symbols with full right, title and interest therein and that all
use by any of them of the Symbols shall inure to the benefit of Enbridge.
(c) To the extent that Enbridge is providing services to Management
under the Operational Services Agreement dated as of even date herewith between
Enbridge, EECI and Management (the "OPERATIONAL SERVICES AGREEMENT") as of the
effective date of (i) withdrawal by EECI as the general partner of the MLP, (ii)
removal of EECI as general partner of the MLP under circumstances where "cause"
exists or (iii) transfer of the capital stock of EECI to any Person that is not
an Affiliate of Enbridge, then Enbridge shall be obligated to provide such
services on substantially the same terms and conditions as provided in the
Operational Services Agreement, to the MLP for twelve months following such
effective date, but shall have no such obligation under the Operational Services
Agreement thereafter.
(d) The obligations of Enbridge under Article 5 (Liability and
Indemnification) of the Operational Services Agreement shall extend to the MLP
and the Operating Partnership upon the same terms as provided in the Operational
Services Agreement with respect to Management and EECI.
(e) As used in this Agreement, "Affiliate" means, with respect to
any person, any other person that directly or indirectly controls, is controlled
by or is under common control with, the person in question. As used herein, the
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a person,
whether through ownership of voting securities, by contract or otherwise.
ARTICLE III
[RESERVED]
ARTICLE IV
CHANGE IN CONTROL
SECTION 4.1. ASSIGNMENT UPON CHANGE OF CONTROL. In the event of a Change
of Control of EECI, Enbridge may assign its obligations under this Agreement to
the controlling person of EECI if, after taking into account the Change of
Control transaction, the unsecured
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long-term debt credit rating of such controlling person as assigned by a
nationally recognized statistical rating organization would be, after giving
effect to such Change of Control transaction, at least equal to the unsecured
long-term debt credit rating of Enbridge as assigned by a nationally recognized
statistical rating organization immediately before such Change of Control
transaction.
SECTION 4.2. DEFINITION OF CHANGE OF CONTROL. A "CHANGE OF CONTROL" shall
be deemed to have occurred at such time as Enbridge shall no longer own,
directly or indirectly, at least 50% of the outstanding capital stock of EECI.
ARTICLE V
BUSINESS OPPORTUNITIES
SECTION 5.1. PROHIBITED ACTIVITIES OF EECI. EECI agrees that its sole
business will be to act as general partner of the MLP, to manage certain
subsidiaries and to undertake ancillary activities. EECI shall not permit any
subsidiary to engage in or acquire any business that is in direct material
competition with the business of the MLP or Operating Partnership conducted
immediately following the Closing Date.
SECTION 5.2. PROHIBITED ACTIVITIES OF ENBRIDGE AND ITS OTHER SUBSIDIARIES.
No provision of this Agreement shall restrict the ability of Enbridge and its
Affiliates other than EECI to engage in any business. However, so long as an
Affiliate of Enbridge is the general partner of the Partnership and the
Operating Partnership, Enbridge and its subsidiaries other than EECI ("OTHER
SUBSIDIARIES") shall not engage in or acquire any business that is in direct
material competition with the current business of the MLP (which term, for
purposes of this Section, includes the Operating Partnership); PROVIDED,
HOWEVER, that
(i) Enbridge and its other subsidiaries shall not be restricted from
continuing to engage in businesses, including the normal development of
those businesses in which they were engaged as of December 27, 1991 (the
"CLOSING DATE"), which then were or may in the future be in competition
with the MLP, including the potential reversal of Enbridge's line from
Sarnia, Ontario to Montreal, Quebec to transport crude oil from Montreal
to Sarnia;
(ii) such restriction shall be limited geographically only to those
routes and products in respect of which the MLP, as of the Closing Date,
provides transportation (so that, for example, Enbridge and its other
subsidiaries would be permitted to acquire a crude oil pipeline business
in which transportation is made over routes or involving products not
served by the MLP at the Closing Date);
(iii) Enbridge and its other subsidiaries shall not be prohibited
from acquiring any competitive business as part of a larger acquisition so
long as the majority of the value of the business or assets acquired, in
Enbridge's reasonable judgment, is not attributable to such competitive
business; and
(iv) Enbridge and its other subsidiaries shall not be prohibited
from acquiring any competitive business if such business is first offered
for acquisition to the MLP and
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the MLP fails to approve, after submission to Unitholder vote, the making
of such acquisition.
The approval of the holders of a majority of the outstanding Units in the MLP
(excluding for this purpose any Units held by EECI or any of its Affiliates) is
required for the MLP to exercise its right to accept such an offer.
Except as specified above, Enbridge and its other subsidiaries are not
restricted by this Agreement from engaging in businesses which may be in
competition with the MLP
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. 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 6.2. NO FIDUCIARY DUTIES. The parties hereto shall not have any
fiduciary obligations or duties to the other parties by reason of this
Agreement. Absent anything in this Agreement to the contrary, 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 6.3. BENEFIT OF AGREEMENT. The covenants and agreements contained
in this Agreement are for the sole benefit of the parties hereto and shall not
be construed as conferring, and are not intended to confer, any direct, indirect
or third-party beneficiary rights on any other persons, including without
limitation, the Limited Partners of the MLP.
SECTION 6.4. 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 sent by facsimile (if confirmed by
one of the foregoing methods) to such party at its address noted below:
(a) in the case of EECI, to:
Enbridge Energy Company, Inc.
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: President
Facsimile: (000) 000-0000
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(b) in the case of the MLP, to:
Enbridge Energy Partners, L.P.
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: President
Facsimile: (000) 000-0000
(c) in the case of Enbridge, to:
Enbridge Pipelines Inc.
0000 000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: President
Facsimile: (000) 000-0000
(d) 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 6.5. 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 6.6. 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 6.7. APPLICABLE LAW. The provisions of this Agreement shall be
construed in accordance with the laws of the State of Texas, excluding any
conflicts of law rule or principle that might refer the construction or
interpretation hereof to the laws of another jurisdiction.
SECTION 6.8. 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 6.9. 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 6.10. 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 6.11. MODIFICATION; AMENDMENT. The parties hereto, by mutual
agreement in writing, may amend, modify or supplement this Agreement; PROVIDED,
HOWEVER, that if any such amendment, modification or supplement adversely
affects the holders of the MLP's Class A Units then such amendment, modification
or supplement shall require the approval of the Record Holders (as defined in
the MLP's Partnership Agreement of more than 50% of the then outstanding holders
of the MLP's Class A Units (excluding Class A Units held by Enbridge or any of
its Affiliates). Subject to obtaining the necessary regulatory approvals, this
Agreement
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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 6.12. 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, this Agreement has been duly executed by the parties
hereto as of the date first above written.
ENBRIDGE ENERGY COMPANY, INC.
By: ____________________________________
Name: ____________________________________
Title:____________________________________
ENBRIDGE ENERGY PARTNERS, L.P.
By: Enbridge Energy Company, Inc.,
its General Partner
By: ____________________________________
Name: ____________________________________
Title:____________________________________
ENBRIDGE PIPELINES INC.
By: ____________________________________
Name: ____________________________________
Title:____________________________________
By: ____________________________________
Name: ____________________________________
Title:____________________________________
ENBRIDGE ENERGY MANAGEMENT, L.L.C.
By: ____________________________________
Name: ____________________________________
Title:____________________________________
SIGNATURE OF PAGE TO OMNIBUS AGREEMENT
