Exhibit 10.5
COMMERCIAL
PAPER
ISSUING AND PAYING AGENT
AGREEMENT
(Book-Entry and
Obligations
Using
DTC Facilities
and Physical Notes)
THIS AGREEMENT
(“
Agreement
”) dated as of April 21, 2005 (“
Effective
Date ”), is entered into by and between
ENBRIDGE ENERGY PARTNERS,
L.P. , a Delaware limited partnership (the “
Issuer
”) with offices at 1100 Louisiana, Suite 3300,
Houston, Texas, 77002 and DEUTSCHE BANK TRUST COMPANY AMERICAS
(the “ Bank ”)
with offices at 60 Wall St, 27 th Floor, New York, New
York 10005.
Section 1.
Appointment
The Issuer requests and
authorizes the Bank to act as agent for the Issuer in connection
with the issuance and payment of unsecured (a) book-entry
obligations (each an “ Obligation
” and collectively the “ Obligations
”) as evidenced by Master Note Certificate(s) (the “
Note
Certificate(s) ”) and (b) bearer short
term promissory notes of the Issuer (each a “
Note ”
and collectively the “ Notes
”), both (a) and (b) in the forms appended hereto
in Exhibit A . The Bank agrees to act as such
agent for the Issuer subject to the provisions of this Agreement
commencing on the Effective Date shown above.
Insofar as the context
requires, all references herein to an Issuer’s “
Obligation
” shall be deemed to include the Issuer’s Note, and all
references herein to an Issuer’s “ Obligations
” or “ Book-entry
Obligations ” shall be deemed to include the
Issuer’s Notes.
Section 2.
Certificate
Agreement
The Issuer acknowledges
that the Bank has previously entered into a commercial paper
certificate agreement (as amended or otherwise modified and
currently in effect, the “ Certificate
Agreement ”) which copy is appended hereto as
Exhibit C , with the Depository Trust Company (“
DTC ”),
and the Issuer also acknowledges that the continuation in effect of
the Certificate Agreement is a necessary prerequisite to the
Bank’s providing services related to issuance of the
Obligations. The Issuer understands and agrees that the
Certificate Agreement shall supplement the provisions of this
Agreement and that the Issuer and the provisions of this Agreement
are subject to the provisions of the Certificate
Agreement.
Section 3.
Letter of Representations;
Resolutions; Authorized Officers
The Issuer will, prior
to the Effective Date, deliver to the Bank an executed Letter of
Representations (the “ Representations
”), a copy of which is appended hereto as
Exhibit D . Further, the Issuer understands and agrees
that such Representations when executed by the Issuer, the Bank and
DTC shall supplement the provisions of this Agreement and that the
Issuer, the Bank, and DTC shall be bound by the provisions of the
Representations. The Bank and the Issuer agree to comply with
the relevant portions of DTC’s Commercial Paper Issuing and
Paying Agent Manual, and the DTC Same Day Settlement System
Rules (collectively the “ DTC Rules
”).
The Issuer has
delivered to the Bank (a) a certified copy of the resolutions
adopted by the Board of Directors of the Issuer concerning the
issuance of Obligations by the Issuer (the “
Resolutions
”), which copy is appended to Exhibit B , and
(b) a certification (the “ Certificate of
Incumbency ”) containing the name, title, and
true signature of those officers of the Issuer authorized by the
Resolutions to take action with respect to the Obligations (the
“ Authorized
Officers ”), which certification is set forth
in Exhibit B . The Issuer agrees to provide the
Bank with revised certified Resolutions and/or Certificates of
Incumbency when and as required by changes in authorization of
personnel.
Section 4.
Authorized
Persons
The Issuer authorizes
the Bank to accept and to execute Instructions, as defined in
and given pursuant to Section 6 hereof by any one
of the employees, representatives and/or “ Agents ”
(defined as sales agents or dealers authorized by a separate
agreement between the Issuer and its sales agents or dealers) of
the Issuer who are designated in a writing that is signed by the
requisite number of Authorized Officers. Such designated
employees or Agents shall be hereinafter collectively referred to
as “ Authorized
Persons ”. The initial written designation of
Authorized Person(s) is set forth in Exhibit B .
The Issuer agrees to provide the Bank with revised written
designations in the form of Exhibit B when and as
required by changes in authorization or personnel.
Section 5.
Note
Certificates
(X)
Book entry
Obligations :
The Issuer will,
prior to the Effective Date, deliver to the Bank a Note Certificate
evidencing Obligations issued, such Note Certificate bearing the
manual or facsimile signatures of the requisite number of
Authorized Officers and specifying the date of issuance, the full
legal name of the Issuer, the name of the state in which the Issuer
is incorporated or formed (as applicable), and the name of the
Bank, acting as paying agent for the Issuer, in each case the Note
Certificate being registered in the name of Cede & Co., a
nominee of DTC.
(Y)
Physical Notes and
Signature Stamps :
For use as
described in Section 7 hereof, the Issuer will, at its
election, (a) deliver to the Bank a supply of the
Issuer’s sequentially numbered, blank Notes bearing the
manual or facsimile signatures of the requisite number of
Authorized Officers and having spaces to show the face or principal
amount, payee, date of issue, maturity date and amount of interest
(if an interest bearing Note), and/or (b) authorize the Bank
to use the Bank’s commercial paper universal note stock,
which has spaces to show the face or principal amount, payee, date
of issue, maturity date, amount of interest (if an interest bearing
Note) and signature(s) of the Authorized Officers. If the
Issuer elects (b), or if the Notes described in (a) do not
bear such signature(s) when delivered to the Bank, then the Issuer
will, at its election, deliver to the Bank for each signature
required to be placed on the Notes either an electronic image of
the requisite signature or a stamp bearing the facsimile signature
of an Authorized Officer.
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(Z)
Book Entry Obligations,
Physical Notes and Signature Stamps :
Any Obligation (as
evidenced by the Note Certificate or Note bearing the manual or
authorized facsimile signature of an Authorized Officer) shall,
upon the Bank’s issuance of such Obligation on behalf of the
Issuer, bind the Issuer notwithstanding that such Authorized
Officer shall have died or shall have otherwise ceased to hold
office on the date such Obligation is issued by the Bank.
Furthermore, the Issuer agrees that the Bank shall have no duty or
responsibility to determine the genuineness of the facsimile and/or
manual signatures appearing on the Note Certificate(s), Notes or
stamps but the foregoing shall not excuse the Bank from examining,
and the Bank shall examine, its signature cards to determine that
signers are authorized and their signatures do not appear on their
face to be incorrect or incomplete.
Section 6.
Instructions
The term “
Instructions
” shall mean a communication, purporting to be from an
Authorized Officer or Authorized Person, in the form of either
(a) a written notice including those transmitted through
facsimile transmittal equipment; (b) a telephone call; and/or
(c) a transmission through an instruction and reporting
communication service (“ Noteline
Direct ”) offered by the Bank pursuant to
Section 10 hereof, and the term “
Timely
Instructions ” means Instructions that are
received by the Bank at the address specified in
Section 15 prior to 1:00 p.m. New York time on the
day on which such Instructions are to be operative, which shall be
a day the Bank is open for business.
If the Bank, at its
option, acts upon Instructions transmitted after 1:00 p.m. New
York time on the day on which the Instructions are to be operative,
the Issuer understands and agrees that (a) such Instructions
shall be acted upon, on a best efforts basis, by the Bank pursuant
to the custom and practice of the commercial paper market, and
(b) the Bank makes no representations or warranties that the
issuance and delivery of any Note or Obligation pursuant to
Section 7 hereof shall be completed prior to the close
of business on the issue date specified in the
Instructions.
Any Timely Instructions
given by telephone shall be confirmed to the Bank in a writing
purporting to be from an Authorized Officer or Authorized Person
prior to 1:00 p.m. New York time on the day on which such
Instructions are to be operative. In the absence of the
Bank’s timely receipt of such written confirmation or in the
event the Bank acts upon Instructions received after 1:00 p.m.
New York time on the day on which the Instructions are to be
operative, the Issuer understands and agrees that such Instructions
given by telephone or received after the aforementioned
1:00 p.m. New York time, as understood by the Bank, shall be
the true and controlling Instructions for all purposes of this
Agreement.
Notwithstanding
anything to the contrary in this Section 6 , the Issuer
acknowledges that the Bank may act upon the Instructions without
any duty to make any inquiry regarding the genuineness of such
Instructions.
Section 7.
Issuance
(X)
Book Entry
Obligations :
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The Bank’s
sole duties in connection with the issuance of the Obligations when
the Issuer delivers the Note Certificate(s) to the Bank in the form
described in Section 5(X) herein, shall be as
follows:
(a)
to hold Note Certificates
in safekeeping;
(b)
to
assign to each applicable Instruction received from the Issuer a
CUSIP number as specified in and in accordance with the CUSIP
number assignment received by the Bank from the Issuer;
(c)
to
cause to deliver an Obligation on behalf of the Issuer upon receipt
of the related Instructions from the Issuer, or its designated
agent(s), as to the face or principal amount, net dollar amount,
date of issue, maturity date, interest rate (if any), and amount of
interest due at maturity (if an interest bearing Obligation), by
way of data entry or data transfer to the DTC Same Day Funds
Settlement System (“ SDFS ”),
and to receive from SDFS a confirmation receipt that such delivery
was effected; and
(d)
to credit the net
proceeds of all deliveries of the Obligations to the Issuer’s
account with the Bank (Account No. 00-445-659) under advice to
the Issuer at the address specified in Section 15
hereof.
Y.
Physical
Notes :
The Bank’s
sole duties in connection with the issuance of the Notes if the
Issuer delivers a supply of the Issuer’s blank Notes to the
Bank or uses the Bank’s commercial paper universal note stock
pursuant to Section 5(Y) hereof shall be as
follows:
(a)
to hold the blank Notes
in safekeeping, pending receipt of the Issuer’s
Instructions;
(b)
to
complete each Note pursuant to the applicable Instructions as to
the face or principal amount, net dollar amount, payee (which shall
be “BEARER” unless otherwise specified in the
Instructions), date of issue, maturity date, interest rate (if any)
and amount of interest due at maturity (if an interest bearing
Note);
(c)
to cause a duly
authorized officer or duly authorized employee of the Bank to
countersign each Note for purposes of authentication of the Note
only;
(d)
to
deliver the Notes in accordance with the related Instructions
(i) by hand, against receipt for payment or (ii) as
otherwise provided in the related Instructions; and
(e)
to credit the net
proceeds of all deliveries of Notes to the Issuer’s account
with the Bank (Account No. 00-445-659) under advice to the
Issuer at the address specified in Section 15
hereof.
The Bank’s
additional duties in connection with the issuance of the Notes when
the Issuer delivers facsimile signature stamps to the Bank pursuant
to Section 5(Y) hereof shall be as follows:
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(f)
to hold
the facsimile signature stamps delivered pursuant to
Section 5(Y) hereof in safekeeping pending receipt of
the Issuer’s Instructions
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