EXHIBIT 10.1
REORGANIZATION AGREEMENT
THIS REORGANIZATION AGREEMENT, dated as of October 17, 2002, is entered
into by and among Enbridge Energy Partners, L.P., a Delaware limited partnership
(the "MLP"), Enbridge Energy, Limited Partnership, a Delaware limited
partnership (the "OLP"), Enbridge Energy Company, Inc., a Delaware corporation
("GP INC.") and Enbridge Pipelines (Lakehead) L.L.C., a Delaware limited
liability company ("GP LLC").
RECITALS
WHEREAS, GP Inc. owns a 1% general partner interest in the MLP and a
1.0101% general partner interest in the OLP;
WHEREAS, the parties to this Agreement have determined that it would be in
their best interests to reorganize the equity ownership structure of the OLP
such that the OLP becomes a wholly owned subsidiary of the MLP; and
WHEREAS, in order to accomplish the objectives and purposes in the
preceding recital, prior to the date hereof, the MLP has formed GP LLC and
contributed $1,000 in exchange for all of the Member Interests (as defined in
the LLC Agreement) of GP LLC.
NOW, THEREFORE, in consideration of their mutual undertakings and
agreements hereunder, the parties to this Agreement undertake and agree as
follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. In addition to the capitalized terms defined in the
opening paragraph of this Agreement, the following capitalized terms shall have
the meanings given below.
"AGREEMENT" means this Reorganization Agreement.
"CLOSING DATE" has the meaning assigned to such term in the
Contribution Agreement.
"CONTRIBUTION AGREEMENT" means the Contribution Agreement, dated as of
May 16, 2002, between Enbridge Energy Partners, L.P. and Enbridge Energy
Company, Inc., as amended by the First Amendment to Contribution Agreement dated
as of September 23, 2002 and as the same may be further amended or restated from
time to time.
"DELAWARE ACT" means the Delaware Revised Uniform Limited Partnership
Act.
"DESIGNATED CONTRIBUTION AMOUNT" means a portion of the Ownership
Interests deemed to have a cash value of $1,670,000.
"LLC AGREEMENT" means the Limited Liability Company Agreement of
Enbridge Pipelines (Lakehead) L.L.C., dated as of October 17, 2002.
"MLP PARTNERSHIP AGREEMENT" means the Amended and Restated Agreement
of Limited Partnership of Enbridge Energy Partners, L.P. dated as of April 15,
1997, as amended on August 28, 2001.
"OLP PARTNERSHIP AGREEMENT" means the Amended and Restated Agreement
of Limited Partnership of Enbridge Energy, Limited Partnership, dated as of
December 27, 1991, as amended on August 28, 2001.
"OWNERSHIP INTERESTS" has the meaning assigned to such term in the
Contribution Agreement.
"REVISED OLP GENERAL PARTNER INTEREST" has the meaning assigned to
such term in Section 2.1.
"REVISED OLP LIMITED PARTNER INTEREST" has the meaning assigned to
such term in Section 2.2.
"SECOND AMENDED AND RESTATED OLP PARTNERSHIP AGREEMENT" has the
meaning assigned to such term in Section 5.1.
ARTICLE II
CONTRIBUTIONS AND ASSIGNMENTS
2.1 CONTRIBUTION BY THE MLP TO GP LLC. The MLP hereby contributes,
transfers assigns and conveys to GP LLC, its successors and assigns, all right,
title and interest of the MLP in and to a .001% limited partner interest in the
OLP (the "REVISED OLP GENERAL PARTNER INTEREST") and GP LLC hereby accepts the
Revised OLP General Partner Interest as a contribution to the capital of GP LLC.
2.2 RECHARACTERIZATION OF INTERESTS. Effective contemporaneously with the
contribution of the Revised OLP General Partner Interest pursuant to Section 2.1
and without further action, (a) the Revised OLP General Partner Interest shall
be recharacterized as, and shall become, a general partner interest and (b) the
1.0101% general partner interest held by GP Inc. in the OLP (the "REVISED OLP
LIMITED PARTNER INTEREST") shall be recharacterized as, and shall become, a
limited partner interest. The OLP hereby acknowledges receipt of the opinion of
counsel required under Section 10.2(b) of the OLP Partnership Agreement.
2.3 CONTRIBUTION BY GP INC. TO THE MLP. Effective contemporaneously with
the contribution of the Revised OLP General Partner Interest pursuant to Section
2.1 and the recharacterization of interests pursuant to Section 2.2, GP Inc.
hereby contributes, transfers, assigns and conveys to the MLP, its successors
and assigns, all right, title and interest of GP Inc. in and to the Revised OLP
Limited Partner Interest, and the MLP hereby accepts the Revised OLP Limited
Partner Interest, as a contribution to the capital of the MLP in partial
consideration for the increase in the general partner interest of GP Inc in the
MLP from 1% to 2% as set forth
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in Section 5.2. As further consideration for the increase in the general partner
interest of GP Inc. in the MLP from 1% to 2% as set forth in Section 5.2, GP
Inc. shall, at GP Inc.'s option, contribute to the MLP within five business days
of the date of this Agreement either (a) $1,670,000 in cash or (b) the
Designated Contribution Amount. The MLP shall accept such cash contribution or
the Designated Contribution Amount, as applicable, as a contribution to the
capital of the MLP which contribution, together with the contribution of the
Revised OLP Limited Partner Interest by GP Inc., shall constitute the entire
consideration for the increase in the general partner interest of GP Inc. in the
MLP from 1% to 2% as set forth in Section 5.2.
ARTICLE III
SUCCESSION OF GENERAL PARTNER OF THE OLP
3.1 WITHDRAWAL OF GP INC. AS GENERAL PARTNER OF OLP. Effective
contemporaneously with the contribution of the Revised OLP General Partner
Interest pursuant to Section 2.1, the recharacterization of interests pursuant
to Section 2.2 and pursuant to Section 12.1(a)(i) of the OLP Partnership
Agreement, GP Inc. hereby ceases to be and withdraws as general partner of the
OLP and proposes GP LLC to act and serve as the sole general partner of the OLP.
The OLP acknowledges receipt of the opinion of counsel required under Section
12.1(b) of the OLP Partnership Agreement.
3.2 GP LLC AS SUCCESSOR GENERAL PARTNER OF OLP. Effective
contemporaneously with (a) GP LLC's acceptance of the contributions to GP LLC of
the Revised OLP General Partner Interest under Section 2.1 and the
recharacterization of such interest under Section 2.2 and (b) the cessation and
withdrawal of GP Inc. as general partner of the OLP under Section 3.1, GP LLC
accepts and agrees to duly and timely pay, perform and discharge the rights,
duties and obligations of the general partner of the OLP and all of the terms
and conditions of the OLP Partnership Agreement in accordance with Section 11.2
of the OLP Partnership Agreement, and GP LLC agrees to serve as general partner
of the OLP and to be bound by the OLP Partnership Agreement, as amended by this
Agreement or as may be further amended by its terms, and GP LLC is hereby
admitted as the successor general partner of the OLP.
ARTICLE IV
ASSUMPTION OF AND INDEMNIFICATION FOR CERTAIN LIABILITIES
4.1 ASSUMPTION OF CERTAIN LIABILITIES AND OBLIGATIONS OF GP INC. BY GP
LLC. In connection with the transfer of the Revised OLP General Partner Interest
and the succession by GP LLC as general partner of the OLP, GP LLC hereby
assumes and agrees to duly and timely pay, perform and discharge all liabilities
and obligations of the OLP to the full extent (and only to the extent) that GP
Inc., as general partner of the OLP, has been or would have been in the future,
were it not for the execution and delivery of this Agreement, obligated to pay,
perform and discharge such liabilities and obligations.
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ARTICLE V
AMENDMENTS TO PARTNERSHIP AGREEMENTS
5.1 AMENDMENT AND RESTATEMENT OF OLP PARTNERSHIP AGREEMENT. In order to
further the purposes and intent of this Agreement, each of GP LLC, as successor
general partner of the OLP, and the MLP, as limited partner of the OLP, in
accordance with Section 11.3 and Article XIV of the OLP Partnership Agreement,
hereby amend and restate the OLP Partnership Agreement in its entirety in
substantially the form attached hereto as EXHIBIT A (the "SECOND AMENDED AND
RESTATED OLP PARTNERSHIP AGREEMENT").
5.2 AMENDMENTS TO MLP PARTNERSHIP AGREEMENT. In order to further the
purposes and intent of this Agreement and to evidence the increased interest of
the general partner in the MLP issued in exchange for the contributions to the
MLP made pursuant to Article II, GP Inc., as general partner of the MLP, having
determined that the following amendments would not adversely affect the limited
partners of the MLP in any material respect, hereby exercises its rights and
powers to amend the MLP Partnership Agreement without the approval of any
limited partner or assignee pursuant to Section 15.1(d)(i) of the MLP
Partnership Agreement and hereby approves and adopts the following amendments to
the MLP Partnership Agreement in accordance with Article XV of the MLP
Partnership Agreement:
(a) Article II of the MLP Partnership Agreement is hereby amended by
adding or amending the definitions of the following terms to read in their
entirety as follows:
"DEPARTING INTEREST" has the meaning assigned to such term in
Section 13.3(a).
"GP REORGANIZATION AGREEMENT" means the Reorganization Agreement,
dated as of October 17, 2002, among the Partnership, the General
Partner, Enbridge Energy, Limited Partnership and Enbridge Pipelines
(Lakehead) L.L.C.
"INDEMNITEE" means the General Partner, any Departing Partner,
any Subsidiary, any Person who is or was an Affiliate of the General
Partner, any Departing Partner, or any Subsidiary, any Person who is
or was an officer, director, employee, partner, agent or trustee of
the General Partner, any Departing Partner or any Subsidiary, or any
such Affiliate, or any Person who is or was serving at the request of
the General Partner, any Departing Partner or any Subsidiary or any
such Affiliate as a director, officer, employee, partner, agent or
trustee of another Person.
"PERCENTAGE INTEREST" means as of the date of such determination
(a) as to the General Partner, 2% and (b) as to any Limited Partner or
Assignee holding Units, the product of (i) 98% multiplied by (ii) the
quotient of (x) the number of Units held by such Limited Partner or
Assignee divided by (y) the total number of all Units then
Outstanding; PROVIDED, HOWEVER, that following any issuance of
additional Units by the Partnership in accordance with Section 4.4,
proper adjustment shall be made to the Percentage Interest represented
by each Unit to reflect such issuance.
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"SUBSIDIARY" means (a) a corporation of which more than 50% of
the voting power of shares entitled (without regard to the occurrence
of any contingency) to vote in the election of directors or other
governing body of such corporation is owned, directly or indirectly,
at the date of determination, by the Partnership, by one or more
Subsidiaries of the Partnership or a combination thereof, (b) a
partnership (whether general or limited) in which the Partnership or a
Subsidiary of the Partnership, is at the date of determination, a
general or limited partner of such partnership, but only if more than
50% of the partnership interests of such partnership (considering all
of the partnership interests of the partnership as a single class) is
owned, directly or indirectly, at the date of determination, by the
Partnership, by one or more Subsidiaries of the Partnership, or a
combination thereof, or (c) any other Person (other than a corporation
or a partnership) in which the Partnership, one or more subsidiaries
of the Partnership, or a combination thereof, directly or indirectly,
at the date of determination, has (i) at least a majority ownership
interest or (ii) the power to elect or direct the election of a
majority of the directors or other governing body of such Person.
"SUBSIDIARY AGREEMENT" means the partnership agreement of any
Subsidiary that is a limited or general partnership, the limited
liability company agreement of any Subsidiary that is a limited
liability company, the certificate of incorporation and bylaws or
similar organizational documents of any Subsidiary that is a
corporation, the joint venture agreement or similar governing document
of any Subsidiary that is a joint venture and the governing or
organizational or similar documents of any other Subsidiary that is a
Person other than a limited or general partnership, limited liability
company, corporation or joint venture, as such may be amended,
supplemented or restated from time to time.
(b) The definitions of "Combined Interest," "Operating General
Partner," "Operating Partnership" and "Operating Partnership Agreement" in
Article II of the MLP Partnership Agreement are hereby deleted in their
entirety. Unless otherwise provided by this Agreement, references to "Combined
Interest" in the MLP Partnership Agreement are hereby changed to "Departing
Interest", references to "Operating General Partner" in the MLP Partnership
Agreement are hereby changed to "Subsidiary", references to "Operating
Partnership" in the MLP Partnership Agreement are hereby changed to "Subsidiary"
and references to "Operating Partnership Agreement" in the MLP Partnership
Agreement are hereby changed to "Subsidiary Agreement".
(c) The reference to "1%" in the definition of "Incentive
Distribution" in Article II of the MLP Partnership Agreement is hereby changed
to "2%".
(d) Section 3.1 of the MLP Partnership Agreement is hereby amended
and restated to read in its entirety as follows:
"PURPOSE AND BUSINESS. The purpose and nature of the business to
be conducted by the Partnership shall be (i) to serve as a partner in
any Subsidiary that is a partnership and, in connection therewith, to
exercise all of the rights and powers conferred upon the Partnership
as a partner in any Subsidiary pursuant to
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any Subsidiary Agreement or otherwise, (ii) to serve as a member,
shareholder or other equity interest holder of any Subsidiary that is
a limited liability company or corporation, and in connection
therewith, to exercise on behalf of the Partnership all the rights and
powers conferred upon the Partnership as a member, shareholder or
other equity interest holder of any Subsidiary that is a limited
liability company or corporation pursuant to any Subsidiary Agreement
or otherwise, (iii) to engage directly in, or to enter into any
partnership, joint venture or similar arrangement to engage in, any
business activity that may be lawfully conducted by a limited
partnership organized pursuant to the Delaware Act and, in connection
therewith, to exercise all of the rights and powers conferred upon the
Partnership pursuant to the agreements relating to such business
activity, (iv) to do anything necessary or appropriate to the
foregoing (including, without limitation, the making of capital
contributions or loans to any Subsidiary or in connection with its
involvement in the activities referred to in clause (iii) of this
sentence), and (v) to engage in any other business activity as
permitted under Delaware law."
(e) The reference to "1%" in Section 4.4(c) of the MLP Partnership
Agreement is hereby changed to "2%".
(f) Section 5.1(c)(i) of the MLP Partnership Agreement is hereby
amended as follows:
(i) references to "99%" are hereby changed to "98%" and
references to "1%" are hereby changed to "2%";
(ii) references to "85.87%" are hereby changed to "85%" and
references to "14.13%" are hereby changed to "15%";
(iii) references to "75.77%" are hereby changed to "75%" and
references to "24.23%" are hereby changed to "25%"; and
(iv) references to "50.51%" are hereby changed to "50%" and
references to "49.49%" are hereby changed to "50%".
(g) Section 5.5 of the MLP Partnership Agreement is hereby amended as
follows:
(i) references to "99%" are hereby changed to "98%" and
references to "1%" are hereby changed to "2%";
(ii) references to "85.87%" are hereby changed to "85%" and
references to "14.13%" are hereby changed to "15%";
(iii) references to "75.77%" are hereby changed to "75%"
references to "24.33%" are hereby changed to "25%"; and
(iv) references to "50.51%" are hereby changed to "50%" and
references to "49.49%" are hereby changed to "50%".
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(h) References to "99%" and "1%" in Section 5.7 of the MLP
Partnership Agreement are hereby changed to "98%" and "2%", respectively.
(i) Clause (vi) of the first sentence of Section 5.8(c) of the MLP
Partnership Agreement is hereby amended to delete the phrase "and the General
Partner's general partner interest in the Operating Partnership".
(j) Clause (ii) of Section 6.1(a) of the MLP Partnership Agreement is
hereby amended and restated in its entirety to read as follows:
"to undertake any action in connection with the Partnership's
participation in, or the exercise of any of its rights in connection with,
any Subsidiary as a partner, member, shareholder or other equity interest
holder (including, without limitation, contributions or loans of funds by
the Partnership to any Subsidiary)."
(k) Section 6.3(b) of the MLP Partnership Agreement is hereby amended
and restated to read in its entirety as follows:
"Except as provided in Article XIV, the General Partner may not sell,
exchange or otherwise dispose of all or substantially all of the
Partnership's assets in a single transaction or a series of related
transactions (including by way of merger, consolidation or other
combination with any other Person) or approve on behalf of the Partnership
the sale, exchange or other disposition of all or substantially all of the
assets of Enbridge Energy, Limited Partnership, without the approval of the
holders of at least a majority of the Outstanding Units; PROVIDED, HOWEVER,
that this provision shall not preclude or limit the General Partner's
ability to mortgage, pledge, hypothecate or grant a security interest in
all or substantially all of the Partnership's assets or any Subsidiary's
assets and shall not apply to any forced sale of any or all of the
Partnership's assets or any Subsidiary's assets pursuant to the foreclosure
of, or other realization upon, any such encumbrance. Without the approval
of the holders of at least a majority of the Outstanding Units, the General
Partner shall not, on behalf of the Partnership, consent to any amendment
to the partnership agreement of Enbridge Energy, Limited Partnership or,
except as expressly permitted by Section 6.9(d), take any action permitted
to be taken by the limited partner of Enbridge Energy, Limited Partnership,
in either case, that would adversely affect the Partnership as a limited
partner of Enbridge Energy, Limited Partnership."
(l) Section 6.4(a) of the MLP Partnership Agreement is hereby amended
to read in its entirety as follows:
"Except as provided in this Section 6.4 and elsewhere in this
Agreement, the General Partner shall not be compensated for its services as
general partner of the Partnership."
(m) The parenthetical in clause (i) of the first sentence of Section
6.4(b) of the MLP Partnership Agreement is hereby amended to add the phrase "or
for the benefit of the Partnership or to or on behalf of any Subsidiary" after
the phrase "for the Partnership".
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(n) Section 6.5(a) of the MLP Partnership Agreement is hereby amended
to delete the phrase "the Operating Partnership Agreement or".
(o) Section 6.8(c) of the MLP Partnership Agreement is hereby amended
and restated to read in its entirety as follows:
"Any amendment, modification or repeal of this Section 6.8 or any
other provision hereof shall be prospective only and shall not in any way
affect the limitations on the liability of the Indemnitees under this
Section 6.8 as in effect immediately prior to such amendment, modification
or repeal with respect to claims arising from or relating to matters
occurring, in whole or in part, prior to such amendment, modification or
repeal, regardless of when such claims may arise or be asserted."
(p) Sections 11.2(a) and 11.2(b) of the MLP Partnership Agreement are
hereby amended to delete the phrase "and the Operating Partnership Agreement".
(q) Section 13.1(b) of the MLP Partnership Agreement is hereby
amended to:
(i) delete the sentence "The withdrawal of the General Partner
from the Partnership upon the occurrence of an Event of Withdrawal
shall also constitute the withdrawal of the general partner from the
Operating Partnership";
(ii) delete the sentence "The person so elected shall
automatically become the successor general partner of the Operating
Partnership, as provided in the Operating Partnership Agreement"; and
(iii) delete the words "and the Operating Partnership" in the
last sentence of such section.
(r) The fourth, fifth and sixth sentences of Section 13.2 of the MLP
Partnership Agreement are hereby deleted and replaced with the following
sentence:
"The right of the Limited Partners to remove the General Partner shall
not exist or be exercised unless the Partnership has received an Opinion of
Counsel opining as to the matters covered by a Withdrawal Opinion of
Counsel."
(s) Section 13.3(a) of the MLP Partnership Agreement is hereby
amended to:
(i) delete the phrase "or the Operating Partnership Agreement"
appearing in the second sentence thereof;
(ii) delete the third and fourth sentences thereof and replace
them with the following sentence:
"In either event, the Departing Partner shall be entitled to
receive all reimbursements due such Departing Partner pursuant to
Section 6.4, including, without limitation, any employee-related
liabilities (including, without limitation, severance liabilities),
incurred in connection with the termination of any
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employees employed by the General Partner for the benefit of the
Partnership or any Subsidiary." and
(iii) delete the phrase "and the partnership interest of such
Partner or its Affiliate, as the case may be, as the general partner
of the Operating Partnership (collectively, the "Combined Interest")
in the first sentence of the second paragraph of Section 13.3(a) and
replace such phrase with the term "(the "Departing Interest")".
(t) References to "99%" and "1%" in Section 13.3(c) of the MLP
Partnership Agreement are hereby changed to "98%" and "2%", respectively.
(u) Subparagraph (e) of Section 14.1 of the MLP Partnership Agreement
is hereby amended to replace the term "the Operating Partnership" with the term
"Enbridge Energy, Limited Partnership".
(v) Subparagraph (d) of Section 15.3 of the MLP Partnership Agreement
is hereby amended to replace the term "the Operating Partnership" with the term
"Enbridge Energy, Limited Partnership" in clause (b) thereof.
(w) Article XVIII of the MLP Partnership Agreement is hereby amended
to add the following new Section 18.12 immediately after Section 18.11 of the
MLP Partnership Agreement:
"18.12 AMENDMENTS TO REFLECT GP REORGANIZATION AGREEMENT. In
addition to the amendments to this Agreement contained in the GP
Reorganization Agreement and notwithstanding any other provision of
this Agreement to the contrary, this Agreement shall be deemed to be
further amended and modified to the extent necessary, but only to the
extent necessary, to carry out the purposes and intent of the GP
Reorganization Agreement."
5.3 RESTATEMENT OF PARTNERSHIP AGREEMENTS. Each of the partners of the MLP
that is a party to this Agreement hereby agrees to execute and deliver an
amended and restated version of the MLP Partnership Agreement incorporating the
amendments to such agreement adopted by this Agreement together with such other
amendments intended to clarify such agreement as the general partner of the MLP
determines are appropriate and do not have an adverse effect on the limited
partners of the MLP in any material respect. Each of the partners of the OLP
that is a party to this Agreement hereby agrees to execute and deliver the
Second Amended and Restated OLP Partnership Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 OTHER ASSURANCES. From time to time after the date hereof, and without
any further consideration, each of the parties to this Agreement shall execute,
acknowledge and deliver all such additional instruments, notices and other
documents, and will do all such other
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acts and things, all in accordance with applicable law, as may be necessary or
appropriate to more fully and effectively carry out the purposes and intent of
this Agreement.
6.2 COSTS. The MLP shall pay all expenses arising out of the
contributions, assignments and deliveries to be made hereunder, including the
expenses of amending and restating the MLP Partnership Agreement and the OLP
Partnership Agreement.
6.3 SUCCESSORS AND ASSIGNS. The Agreement shall be binding upon and inure
to the benefit of the parties signatory hereto and their respective successors
and assigns.
6.4 NO THIRD PARTY RIGHTS. The provisions of this Agreement are intended
to bind the parties signatory hereto as to each other and are not intended to
and do not create rights in any other person or confer upon any other person any
benefits, rights or remedies and no person is or is intended to be a third party
beneficiary of any of the provisions of this Agreement.
6.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one agreement binding on
the parties hereto.
6.6 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
6.7 AMENDMENT OR MODIFICATION. This Agreement may be amended or modified
from time to time only by the written agreement of all the parties hereto.
6.8 REFERENCES. References in this Agreement to Articles and Sections
refer to Articles and Sections of this Agreement unless otherwise noted or
unless the context otherwise requires.
[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 PARTNERS, L.P.
By: ENBRIDGE ENERGY COMPANY, INC.,
as general partner
By: /s/ XXX X. XXXXXXX
-------------------------
Xxx X. Xxxxxxx
President
ENBRIDGE ENERGY, LIMITED PARTNERSHIP
By: ENBRIDGE ENERGY COMPANY, INC.,
as general partner
By: /s/ XXX X. XXXXXXX
-------------------------
Xxx X. Xxxxxxx
President
ENBRIDGE ENERGY COMPANY, INC.
By: /s/ XXX X. XXXXXXX
---------------------------------
Xxx X. Xxxxxxx
President
ENBRIDGE PIPELINES (LAKEHEAD) L.L.C.
By: /s/ XXX X. XXXXXXX
---------------------------------
Xxx X. Xxxxxxx
President
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