EXHIBIT 99.1
SECOND AMENDMENT TO REVOLVING
CREDIT AGREEMENT
THIS SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "AMENDMENT") is
made and entered into as of October 25, 2004, by and among NORTHERN BORDER
PARTNERS, L.P., a Delaware limited partnership (the "BORROWER"), Northern Border
Intermediate Limited Partnership, a Delaware limited partnership (the
"Guarantor"), the Lenders (as defined below) party hereto and SUNTRUST BANK, in
its capacity as Administrative Agent for the Lenders (the "ADMINISTRATIVE
AGENT").
W I T N E S S E T H:
WHEREAS, the Borrower, the several banks and other financial institutions
party thereto (collectively, the "LENDERS") and the Administrative Agent are
parties to that certain Revolving Credit Agreement, dated as of November 24,
2003, as amended by that certain First Amendment to Revolving Credit Agreement,
dated as of April 9, 2004 (as so amended, the "CREDIT AGREEMENT"; capitalized
terms used herein and not otherwise defined shall have the meanings assigned to
such terms in the Credit Agreement as amended hereby), pursuant to which the
Lenders have made certain financial accommodations available to the Borrower;
and
WHEREAS, the Borrower has requested that the Lenders and the
Administrative Agent amend certain provisions of the Credit Agreement, and
subject to the terms and conditions hereof, the Lenders are willing to do so;
NOW, THEREFORE, for good and valuable consideration, the sufficiency and
receipt of all of which are acknowledged, the Borrower, the Lenders and the
Administrative Agent agree as follows:
1. AMENDMENT.
(a) Section 1.1, Definitions, of the Credit Agreement is hereby amended by
deleting the definition of "Change of Control" in its entirety and replacing it
with the following:
"CHANGE OF CONTROL" means (i) the failure of Borrower directly, or
indirectly through Intermediate Partnership, to own as a general partner,
free and clear of all Liens, at least 60% of the partnership interests in
NBPC or (ii) the failure of Enron Corp., CrossCountry Energy Corp.,
CrossCountry Energy, L.L.C., TransCanada PipeLines Limited, CCE Holdings,
L.L.C. and/or ONEOK, Inc. directly, or indirectly through one or more
wholly-owned Subsidiaries, to own, free and clear of all Liens, general
partner interests in Borrower and the Intermediate Partnership such that
the aggregate voting rights of such Persons is greater than 50% of the
outstanding voting rights of all general partners of Borrower and the
Intermediate Partnership.
2. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT. Notwithstanding any
other provision of this Amendment and without affecting in any manner the rights
of the Lenders hereunder, it is understood and agreed that this Amendment shall
not become effective, and the Borrower shall have no rights under this
Amendment, until the Administrative Agent shall have received executed
counterparts to this Amendment from the Borrower, the Guarantor and the Required
Lenders.
3. REPRESENTATIONS AND WARRANTIES. To induce the Lenders and the
Administrative Agent to enter into this Amendment, each Loan Party hereby
represents and warrants to the Lenders and the Administrative Agent that:
(a) The execution and delivery by such Loan Party of this Amendment and
the performance of this Amendment and the Credit Agreement as amended hereby (i)
are within such Loan Party's power and authority; (ii) have been duly authorized
by all necessary partnership and partner action; (iii) are not in contravention
of any provision of such Loan Party's certificate of partnership, partnership
agreement or other organizational documents; (iv) do not violate any law or
regulation, or any order or decree of any Governmental Authority; (v) do not
conflict with or result in the breach or termination of, constitute a default
under or accelerate any performance required by, any indenture, mortgage, deed
of trust, lease, agreement or other instrument to which such Loan Party or any
of its Subsidiaries is a party or by which such Loan Party or any such
Subsidiary or any of their respective property is bound; (vi) do not result in
the creation or imposition of any Lien upon any of the property of such Loan
Party or any of its Subsidiaries; and (vii) do not require the consent or
approval of any Governmental Authority or any other Person;
(b) This Amendment has been duly executed and delivered for the benefit of
or on behalf of each Loan Party and constitutes a legal, valid and binding
obligation of each Loan Party, enforceable against such Loan Party in accordance
with its terms except as the enforceability hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws affecting creditors'
rights and remedies in general; and
(c) After giving effect to this Amendment, the representations and
warranties contained in the Credit Agreement and the other Loan Documents are
true and correct in all material respects, and no Default or Event of Default
has occurred and is continuing as of the date hereof.
4. REAFFIRMATIONS AND ACKNOWLEDGMENTS.
The Guarantor consents to the execution and delivery by the Borrower of
this Amendment and ratifies and confirms the terms of the Guaranty with respect
to the indebtedness now or hereafter outstanding under the Credit Agreement as
amended hereby and all promissory notes issued thereunder. The Guarantor
acknowledges that, notwithstanding anything to the contrary contained herein or
in any other document evidencing any indebtedness of the Borrower to the Lenders
or any other obligation of the Borrower, or any actions now or hereafter taken
by the Lenders with respect to any obligation of the Borrower, the Guaranty (i)
is and shall continue to be a primary obligation of the Guarantor, (ii) is and
shall continue to be an absolute,
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unconditional, continuing and irrevocable guaranty of payment and (iii) is and
shall continue to be in full force and effect in accordance with its terms.
Nothing contained herein to the contrary shall release, discharge, modify,
change or affect the original liability of the Guarantor under the Guaranty.
5. EFFECT OF AMENDMENT. Except as set forth expressly herein, all terms of
the Credit Agreement, as amended hereby, and the other Loan Documents shall be
and remain in full force and effect and shall constitute the legal, valid,
binding and enforceable obligations of the Borrower to the Lenders and the
Administrative Agent. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Lenders under the Credit Agreement, nor
constitute a waiver of any provision of the Credit Agreement. This Amendment
shall constitute a Loan Document for all purposes of the Credit Agreement.
6. GOVERNING LAW. This Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of New York and all applicable
federal laws of the United States of America.
7. NO NOVATION. This Amendment is not intended by the parties to be, and
shall not be construed to be, a novation of the Credit Agreement or an accord
and satisfaction in regard thereto.
8. COSTS AND EXPENSES. The Borrower agrees to pay on demand all costs and
expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Amendment, including, without limitation, the
reasonable fees and out-of-pocket expenses of outside counsel for the
Administrative Agent with respect thereto.
9. COUNTERPARTS. This Amendment may be executed by one or more of the
parties hereto in any number of separate counterparts, each of which shall be
deemed an original and all of which, taken together, shall be deemed to
constitute one and the same instrument. Delivery of an executed counterpart of
this Amendment by facsimile transmission or by electronic mail in pdf form shall
be as effective as delivery of a manually executed counterpart hereof.
10. BINDING NATURE. This Amendment shall be binding upon and inure to the
benefit of the parties hereto, their respective successors,
successors-in-titles, and assigns.
11. ENTIRE UNDERSTANDING. This Amendment sets forth the entire
understanding of the parties with respect to the matters set forth herein, and
shall supersede any prior negotiations or agreements, whether written or oral,
with respect thereto.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed, under seal in the case of the Borrower and the Guarantor, by
their respective authorized officers as of the day and year first above written.
BORROWER:
NORTHERN BORDER PARTNERS, L.P.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial and Accounting
Officer
GUARANTOR:
NORTHERN BORDER INTERMEDIATE
LIMITED PARTNERSHIP
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial and Accounting
Officer
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LENDERS:
SUNTRUST BANK, as Administrative Agent
and Lender
By: /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
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XXXXXX XXXXXXX FINANCING, INC.,
as a Lender
By: /s/ Cahal X. Xxxxxxx
-------------------------------
Name: Cahal X. Xxxxxxx
Title: Vice President
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WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
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CITIBANK, N.A., as a Lender
By: /s/ Xxx X. Xxxxx
-------------------------------
Name: Xxx X. Xxxxx
Title: Attorney-In-Fact
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BARCLAYS BANK PLC, as a Lender
By: /s/ Xxxxxxxx Xxxx
-------------------------------
Name: Xxxxxxxx Xxxx
Title: Director
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ROYAL BANK OF CANADA, as a Lender
By: /s/ Xxxxx X. XxXxxxxxx
-------------------------------
Name: Xxxxx X. XxXxxxxxx
Title: Authorized Signatory
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UBS LOAN FINANCE LLC as a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Associate Director Banking
Products Services, US
By: /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Associate Director Banking
Products Services, US
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XXXXX FARGO BANK, N.A., as a Lender
By: /s/ Art Xxxxxx
-------------------------------
Name: Art Xxxxxx
Title: Relationship Manager
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