EXHIBIT 10.6
OMNIBUS AGREEMENT
AMONG
ENBRIDGE ENERGY COMPANY, INC.
ENBRIDGE ENERGY PARTNERS, L.P.
AND
ENBRIDGE PIPELINES INC.
DATED AS OF OCTOBER 17, 2002
OMNIBUS AGREEMENT
This OMNIBUS AGREEMENT (this "Agreement"), dated as of October 17, 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") and Enbridge Pipelines Inc. (f/k/a Interprovincial Pipe Line Inc.), a
Canadian corporation ("ENBRIDGE").
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, the parties desire to amend and restate the Distribution Support
Agreement as set forth herein to make 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
DEFINITION
SECTION 1.1. DEFINITION OF "AFFILIATE". 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 II
TRADEMARK
SECTION 2.1. TRADEMARK. Enbridge hereby grants to the MLP and its
Affiliates, a worldwide non-exclusive royalty-free right and license, for so
long as an Affiliate of Enbridge serves as general partner of the MLP, 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 (i) agrees 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) acknowledges
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.
ARTICLE III
OPERATIONAL SERVICES
SECTION 3.1. PROVISION OF TRANSITION SERVICES. To the extent that Enbridge
is providing services to Enbridge Energy Management L.L.C. ("MANAGEMENT") or one
of its Affiliates 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.
SECTION 3.2. INDEMNITY. The obligations of Enbridge under Article 5
(Liability and Indemnification) of the Operational Services Agreement shall
extend to the MLP and its subsidiaries upon the same terms as provided in the
Operational Services Agreement with respect to Management and EECI.
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 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 Enbridge Energy, Limited Partnership
(the "OPERATING PARTNERSHIP") conducted immediately following December 27, 1991
(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
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partner of the MLP, 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 the Closing Date, which
then were or may in the future be in competition with the MLP, including
the 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 the MLP fails to approve, after submission to
Unitholder (as defined in the MLP's Third Amended and Restated Partnership
Agreement dated as of even date herewith) 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. 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 6.2. INTEGRATION. This Agreement supersedes all previous
understandings or agreements between the parties, whether oral or written, with
respect to its subject matter. This document is an integrated agreement which
contains the entire understanding of the parties. No understanding,
representation, promise or agreement, whether oral or written, is intended to
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be or shall be included in or form part of this Agreement unless it is contained
in a written amendment hereto executed by the parties hereto after the date of
this Agreement.
SECTION 6.3. 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.
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Attention: President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) in the case of the MLP, to:
Enbridge Energy Partners, L.P.
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Attention: President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) in the case of Enbridge, to:
Enbridge Pipelines Inc.
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Attention: President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address of which notice may have been given by such party in
accordance with the provisions of this Section.
SECTION 6.4. 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 6.5. 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.
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SECTION 6.6. 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 6.7. 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.
SECTION 6.8. 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 6.9. 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.
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SECTION 6.10. 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 Third Amended and Restated 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).
[Signature Page Follows]
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: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇▇
President
ENBRIDGE ENERGY PARTNERS, L.P.
By: Enbridge Energy Company, Inc.,
as General Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇▇
President
ENBRIDGE PIPELINES INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇
Vice President, Development &
Services
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Corporate Secretary
SIGNATURE OF PAGE TO OMNIBUS AGREEMENT
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