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EXHIBIT 10.1
SECOND AMENDMENT TO
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (as the same may be amended, amended and restated, modified, or
supplemented from time to time, this "Amendment") is entered into and effective
as of the 16th day of June, 1998 by and among LAKEHEAD PIPE LINE COMPANY, INC.,
a Delaware corporation (the "General Partner"), LAKEHEAD PIPE LINE PARTNERS,
L.P., a Delaware limited partnership (the "MLP"), LAKEHEAD SERVICES LIMITED
PARTNERSHIP, a Delaware limited partnership (the "Services Partnership"),
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP, a Delaware limited partnership
(the "Operating Partnership," and, together with the MLP and the Services
Partnership, collectively the "Borrowers"); BANK OF MONTREAL, a Canadian
chartered bank, THE TORONTO-DOMINION BANK, a Canadian chartered bank, CANADIAN
IMPERIAL BANK OF COMMERCE, a Canadian chartered bank, ABN AMRO BANK, N.V.,
CAYMAN ISLANDS BRANCH ; and said BANK OF MONTREAL as Agent for the Banks.
W I T N E S E T H :
WHEREAS, the General Partner, the Borrowers, the Banks, the Agent, and
the Collateral Agent have entered into that certain Amended and Restated Credit
Agreement dated as of September 6, 1996 as amended by that certain First
Amendment to Amended and Restated Revolving Credit Agreement, dated effective as
of September 6,1996 (as so amended and as the same may be amended, modified, or
supplemented from time to time, the "Credit Agreement");
WHEREAS, prior to the date hereof, the Operating Partnership entered
into certain amendments of the Mortgage Note Agreements pursuant to a Third
Amendment dated as of December 15, 1997.
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WHEREAS, the General Partner, the Borrowers, the Banks, and the Agent
have agreed, and hereby agree, to conform certain provisions of the Credit
Agreement to the amendments of the Mortgage Note Agreements as set forth in the
Third Amendment, to increase the amount of the Commitment and further to amend
certain other provisions of the Credit Agreement;
NOW, THEREFORE, the General Partner, the Borrowers, the Banks, and the
Agent hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used herein (including in the
recitals hereinabove) and not otherwise defined herein shall have the meanings
respectively assigned to such terms in the Credit Agreement.
SECTION 2. Amendments to Section 1.01 of the Credit Agreement.
Section 1.01 of the Credit Agreement is hereby amended as
follows:
(i) The definition of the term "Consolidated Pro Forma Debt
Service" contained in Section 1.01 of the Credit Agreement is hereby deleted in
its entirety and the following substituted therefor:
" 'Consolidated Pro Forma Debt Service' means, at
any date of determination, (a) the total amount payable by any
Person and its Subsidiaries on a consolidated basis, after
eliminating all intercompany transactions, during the four
consecutive calendar quarters next succeeding the date of
determination, in respect of all interest charges with respect
to Indebtedness of such Person and its Subsidiaries
outstanding on such date of determination, after giving effect
to any Indebtedness proposed to be incurred on such date and
to the repayment of any other Indebtedness occurring either
concurrently therewith or within 90 days thereafter, including
actual payments under Capital Lease obligations, (b) less the
amount of investment income received by such Person and its
Subsidiaries on a consolidated basis during such period from
the investment of cash and cash equivalents, (i) assuming, in
the case of the Indebtedness under this Agreement (other than
Indebtedness secured by Qualifying Securities), that such
Indebtedness will bear interest at the Fluctuating Rate and,
in the case of other Indebtedness bearing interest at
fluctuating interest rates which cannot be determined in
advance, that the rate in effect on such date will remain in
effect throughout such period; (ii) in the case of any Working
Capital Facility, including only actual interest payments paid
pursuant thereto during the most recent four calendar
quarters; and (iii) treating the principal amount of all
Indebtedness outstanding as of such date of determination
under a revolving credit or similar agreement other than any
Working Capital Facility, as maturing and becoming due and
payable in equal quarterly installments over (A) a term of
seven years if the
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maturity or termination date thereof is seven years or less or
(B) if the maturity or termination date thereof is more than
seven years, over such longer term."
(ii) The definition of the term "Interest Rate Agreement"
contained in Section 1.01 of the Credit Agreement is hereby deleted in its
entirety and the following substituted therefor:
" 'Interest Rate Agreement' shall mean any one or more
interest rate swap agreements , interest rate cap agreements,
interest rate collar agreements or other similar agreements or
arrangements designed to protect the Operating Partnership,
the Services Partnership, the MLP or any of their respective
Subsidiaries against fluctuations in interest rates on
Indebtedness outstanding under any of their respective current
or future debt obligations."
(iii) The definition of the term "Maximum Consolidated Pro
Forma Debt Service" contained in Section 1.01 of the Credit Agreement is hereby
deleted in its entirety and the following substituted therefor:
" 'Maximum Consolidated Pro Forma Debt Service'
means, as at any date of determination, (a) the highest total
amount payable by any Person and its Subsidiaries on a
consolidated basis, after eliminating all intercompany
transactions, during any period of four consecutive calendar
quarters, commencing with the fiscal quarter in which such
date of determination occurs (and based on Indebtedness
outstanding as of such date of determination) and ending on
December 31, 2011, in respect of scheduled principal payments
and all interest charges with respect to all Indebtedness of
any Person and its Subsidiaries outstanding on such date of
determination, after giving effect to any Indebtedness
proposed to be incurred on such date and to the repayment of
any other Indebtedness occurring concurrently therewith or
within 90 days thereafter, including actual payments under
Capital Lease obligations, less (b) the amount of investment
income received by such Person and its Subsidiaries on a
consolidated basis during such period from the investment of
cash and cash equivalents, (i) assuming, in the case of the
Indebtedness under this Agreement (other than Indebtedness
secured by Qualifying Securities), that such indebtedness will
bear interest at the Fluctuating Rate, and, in the case of
other Indebtedness bearing interest at fluctuating interest
rates which cannot be determined in advance, that the rate in
effect on such date will remain in effect throughout such
period, (ii) in the case of any Working Capital Facility,
including only actual interest payments paid pursuant thereto
during the four most recent calendar quarters, and (iii)
treating the principal amount of all Indebtedness outstanding
as of such date of determination under a revolving credit or
similar agreement (other than any Working Capital Facility) as
maturing and becoming due and payable in equal quarterly
installments over (A) a term of seven years if the maturity or
termination date thereof is seven years or less or (B) if the
maturity or termination date is more than seven years, over
such longer term."
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(iv) The definition of the term "Notes" contained in Section
1.01 of the Credit Agreement is hereby amended by inserting immediately after
the phrase ", including, without limitation, any promissory notes evidencing any
increase in the Total Loan Commitment", but before the "." appearing at the end
thereof, the following:
", including, without limitation, any
promissory notes evidencing any increase in the Total Loan
Commitment, including, without limitation, (a) those
promissory notes, each dated June 16,1998, executed by the
Operating Partnership in the respective face amounts of
$136,586,300, $85,365,850, $85,365,850 and $42,682,000 payable
respectively to the order of the Bank of Montreal, The
TorontoDominion Bank, the Canadian Imperial Bank of Commerce
and ABN AMRO Bank, N.V., Cayman Islands Branch, (b) those
promissory notes, each dated June 16,1998, executed by the MLP
in the respective face amounts of $136,586,300, $85,365,850,
$85,365,850 and $42,682,000 payable respectively to the order
of the Bank of Montreal, The Toronto-Dominion Bank, the
Canadian Imperial Bank of Commerce and ABN AMRO Bank, N.V.,
Cayman Islands Branch, and (c) those promissory notes, each
dated June 16,1998, executed by the Services Partnership in
the respective face amounts of $136,586,300, $85,365,850,
$85,365,850 and $42,682,000 payable respectively to the order
of Bank of Montreal, The TorontoDominion Bank, the Canadian
Imperial Bank of Commerce and ABN AMRO Bank, N.V., Cayman
Islands Branch."
(v) The definition of the term "Parity Debt" contained in
Section 1.01 of the Credit Agreement is hereby deleted in its entirety and the
following substituted therefor:
" 'Parity Debt' shall mean indebtedness of the
Operating Partnership (including, without limitation, indebtedness of
the Operating Partnership evidenced by Mortgage Notes) which satisfies
the definition of "Parity Debt" as said term is defined in the Mortgage
Note Agreements."
(vi) The definition of the term "Prospective Debt Service"
contained in Section 1.01 of the Credit Agreement is hereby deleted in its
entirety and the following substituted therefor:
"'Prospective Debt Service' shall mean, in respect of
any Person, the sum of a) the payment obligations of such
Person and its Subsidiaries on a consolidated basis, after
eliminating all intercompany transactions, in respect of a
relevant calendar quarter for which the calculation thereof is
being made, and based on Funded Debt outstanding as of the
date of determination, for all interest charges with respect
to, Funded Debt, less (b) the amount of investment income
generated by such Person and its Subsidiaries on a
consolidated basis from the investment of cash and cash
equivalents during such period, (i) assuming, in the case of
the Loans (other than Loans secured by Qualifying Securities),
that the rate of interest will be the
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Fluctuating Rate and, in the case of other Funded Debt bearing
interest at fluctuating interest rates which cannot be
determined in advance, that the rate in effect on such date
will remain in effect throughout such period, (ii) in the case
of any Working Capital Facility, including only actual
interest payments paid thereunder during such calendar
quarter, (iii) treating the principal amount of all Funded
Debt outstanding as of such date of determination under a
revolving credit or similar agreement (other than any Working
Capital Facility) as maturing and becoming due and payable in
equal quarterly installments over (A) a term of seven years if
the maturity or termination date thereof is seven years or
less or (B) if the maturity or termination date is more than
seven years, over such larger term, and (iv) deeming (A) with
respect to the Mortgage Notes and any of such other Funded
Debt of which principal is payable annually, that 25% of the
aggregate amount of all principal to be paid in respect of
such Mortgage Notes and other Funded Debt in such year is
being payable in such quarter, and (B) with respect to any
other Funded Debt of which principal is payable semi-annually
or more frequently, that at least 50% of the aggregate amount
of all principal to be paid in respect of such other Funded
Debt in such period as being payable in such quarter."
(vii) The definition of the term "Total Loan Commitment" contained in
Section 1.01 of the Credit Agreement is hereby amended by deleting the amount
"$205,000,000" appearing therein and substituting therefor the amount of
"$350,000,000."
(viii) The definition of the term "Working Capital Facility" contained
in Section 1.01 of the Credit Agreement is hereby amended by adding the phrase
"or other financial institutions after "banks " and before ", which" in the
third line thereof.
SECTION 3. Amendment to Subsections 8.01 (f) and 8.01(j) of
the Credit Agreement.
(i) Subsection (f) of Section 8.01 of the Credit Agreement is hereby
deleted in its entirety and the following substituted therefor:
"(f) The Operating Partnership may become and remain
liable with respect to Indebtedness, in addition to that
otherwise permitted by the foregoing subsections of this
Section 8.01, including Borrowings under this Agreement, if on
the date the Operating Partnership becomes liable with respect
to any such additional Indebtedness and immediately after
giving effect thereto and to the repayment of any Indebtedness
occurring either concurrently therewith or within 90 days
thereafter (i) (A) the ratio of Consolidated Cash Flow to
Consolidated Pro Forma Debt Service is greater than 2.5 to
1.0, and (B) the ratio of Consolidated Cash Flow to Maximum
Consolidated Pro Forma Debt Service is greater than 1.1 to
1.0; and (ii) any such Indebtedness which is to be secured
under the Security Documents as provided in
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Section 8.02(i) is incurred pursuant to an agreement or
instrument which complies with the requirements set forth in
clause ii of the proviso to Section 8.01(b), provided that if
such Indebtedness is (A) Funded Debt incurred by the Operating
Partnership and (B) is to be secured under the Security
Documents as provided in Section 8.02(i), then on the date the
Operating Partnership becomes liable with respect to any such
additional Funded Debt, the Operating Partnership would not be
permitted to incur any additional Funded Debt under Section
8.01(b);"
(ii) Subsection (j) of Section 8.01 of the Credit Agreement is hereby
deleted in its entirety and the following substituted therefor:
"(j) the Operating Partnership, the Services Partnership, the
MLP and their respective Subsidiaries may become and remain
liable with respect to obligations under Interest Rate
Agreements; and"
(iii) Subsection (k) of Section 8.01 of the Credit Agreement is hereby
deleted in its entirety.
SECTION 4. Amendments to Section 8.02 of the Credit Agreement.
Section 8.02 of the Credit Agreement is hereby amended as
follows:
(i) Subsection (i) of Section 8.02 of the Credit Agreement is
hereby amended by inserting the words " or Section 8.01(f)" immediately after
the words "Section 8.01(b)" appearing at the end of clause (A) thereof.
(ii) The "lead-in" language to Clause (C) of Subsection 8.02
(i) of the Credit Agreement and subclauses (i) and (ii) to said Clause (C) are
hereby deleted in its entirety and the following shall be substituted therefor:
"(C) to the extent incurred to finance the making of capital
improvements, repairs and additions to the Operating
Partnership's Mortgaged Property, Indebtedness incurred under
Section 8.01(f), provided that:
(i) such Liens are effected through an amendment to
the Mortgages to the extent necessary to provide the holders
of such Indebtedness equal and ratable security in the
property and assets subject to the Security Documents with the
holders of the MP Loans and the Mortgage Notes and of other
Indebtedness secured under the Security Documents;
(ii) in the case of Indebtedness incurred in
connection with Section 8.01(b) or 8.01(f), the Mortgages are
amended to the extent necessary to extend the
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Lien thereof to any property or assets, if any, acquired or
otherwise financed with the proceeds of such Indebtedness and"
(iii) Subsection (j) of Section 8.02 of the Credit Agreement
is hereby amended by inserting "8.01(b)" immediately after the word "Section"
but before the "8.01(f)" appearing in the fifth line thereof.
(iv) Subsection (r) of Section 8.02 of the Credit Agreement is
hereby deleted in its entirety and the following shall be substituted therefor
"Liens on property not securing the Loans granted to secure
the obligations of the Operating Partnership, the MLP or the
Services Partnership under Interest Rate Agreements or any
agreement described in Section 8.01(k);"
(v) Subsection (s) of Section 8.02 of the Credit Agreement is
hereby deleted in its entirety.
(vi) The last paragraph of Section 8.02 is hereby amended by
adding the words "or any Subsidiary" after the word "Borrower" and before the
word "of" in the last line thereof.
SECTION 5. Amendments to Section 8.03 of the Credit Agreement.
Subsections (c), (e) (f) and (g) of Section 8.03 of the
Credit Agreement are hereby each amended by inserting the words "or any
Subsidiary" immediately after the word "it" appearing at the beginning thereof.
SECTION 6. Amendments to Subsections 8.07 (c) (ii) (A) and (B) of the
Credit Agreement.
Each of subclauses (A) and (B) of Subsection 8.07(c)(ii) of
the Credit Agreement is hereby amended by deleting the amount "$5,000,000" where
it appears in said subclauses and substituting therefor the amount of
"$15,000,000."
SECTION 7. Amendments to Section 11.11 of the Credit Agreement.
(i) 11.11(b) of the Credit Agreement is hereby amended by
deleting the word "Prospective" appearing immediately before the phrase "Debt
Service Reserve by dedicating thereto" appearing in the fourth line thereof.
(ii) Sub-section 11.11(c) of the Credit Agreement is hereby
deleted in its entirety and the following substituted therefor:
"(c) Notwithstanding anything contained herein or elsewhere
to the contrary or seemingly to the contrary, failure by the Operating
Partnership to comply
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with the provisions of Section 11.11(a) or 11.11(b) shall not constitute a
Default or Event of Default if such failure is a result of the Quarterly Cash
Flow Available for Debt Service's being insufficient to fund and/or increase the
Debt Service Reserve to the amount required by Section 11.11(a) or the
provisions of Section 11.11(b), as applicable."
SECTION 8. Amendments to Exhibit B of the Credit Agreement.
The Credit Agreement is hereby amended by deleting Exhibit B thereto
and substituting therefor the Notice of Borrowing attached hereto as Annex 1.
SECTION 9. Representations and Warranties. Each of the General Partner
and each of the Borrowers severally represents and warrants, each for itself and
not otherwise, that as of the date hereof, each of the representations and
warranties set forth in Article V of the Credit Agreement is true and correct.
SECTION 10. Conditions of Effectiveness. This Amendment shall become
effective upon satisfaction of the following conditions or upon waiver thereof:
(i) The General Partner and the Borrowers shall have executed this Amendment and
delivered the same to the Agent; (ii) the Agent shall have received the
Certificate of the Secretary or Assistant Secretary of the General Partner (x)
certifying the corporate resolutions authorizing execution and delivery of this
Amendment by the General Partner, together with an incumbency certificate in
respect of the officers executing this Amendment; and (y) confirming that each
of the Certificate of Incorporation of the General Partner, the MLP Partnership
Agreement, the Services Partnership Agreement and the Operating Partnership
Agreement has not been amended, modified, revoked, terminated, rescinded or
otherwise changed, except as would not be reasonably expected to have a material
adverse effect on the Borrower's ability to perform its obligations under the
Credit Agreement; and (iii) the Banks shall have received the opinion of Xxxxxxx
and Xxxxx, L.L.P., special counsel for the General Partner and the Borrowers, in
a form reasonably acceptable to the Banks.
SECTION 11. Full Force and Effect. The Credit Agreement, as amended
hereby, shall continue in full force and effect. The Credit Agreement and this
Amendment, during its term, shall be read, taken, and construed as one and the
same instrument.
SECTION 12. Counterparts. This Amendment may be signed in any number of
counterparts, and by different parties on separate counterparts, each of which
shall be construed as an original, but all of which taken together shall
constitute but one and the same instrument. This Amendment shall be effective as
of the date hereof when counterparts hereof executed by each of the parties
hereto shall have been delivered to the Agent.
SECTION 13. Governing Law. The parties hereto agree and intend that
this Amendment shall be governed by, and construed in accordance with, the law
of the State of New York.
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SECTION 14. Final Agreement. This Amendment, the Credit Agreement and
the other Loan Documents represent the final agreement between the parties and
may not be contradicted by evidence of prior, contemporaneous or subsequent oral
agreements of the parties.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective officer or officers thereunto duly
authorized.
LAKEHEAD PIPE LINE COMPANY, INC.
By: /s/ XXXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxx
-----------------------------
Title: President
----------------------------
By: /s/ XXXX X. XXXX
-----------------------------------
Name: Xxxx X. Xxxx
-----------------------------
Title: Chief Accountant
----------------------------
LAKEHEAD PIPE LINE PARTNERS, L.P.
By: Lakehead Pipe Line Company, Inc.
General Partner
By: /s/ XXXXXXX X. WUROI
-----------------------------------
Name: Xxxxxxx X. Xxxxx
-----------------------------
Title: President
----------------------------
By: /s/ XXXX X. XXXX
-----------------------------------
Name: Xxxx X. Xxxx
-----------------------------
Title: Chief Accountant
----------------------------
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LAKEHEAD SERVICES,
LIMITED PARTNERSHIP
By: Lakehead Pipe Line Partners, L.P., a
Delaware Limited Partnership,
its General Partner
By: Lakehead Pipe Line Company, Inc.,
as General Partner of Lakehead Pipe
Line Partners, L.P.
By: /s/ XXXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------------
Title: President
------------------------------
By: /s/ XXXX X. XXXX
-------------------------------------
Name: Xxxx X. Xxxx
-------------------------------
Title: Chief Accountant
------------------------------
LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP
By: Lakehead Pipe Line Company, Inc.,
General Partner
By: /s/ XXXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------------
Title: President
------------------------------
By: /s/ XXXX X XXXX
-------------------------------------
Name: Xxxx X. Xxxx
-------------------------------
Title: Chief Accountant
------------------------------
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BANK OF MONTREAL, a Canadian-chartered
bank in its individual capacity as a Bank
and as Agent
By: /s/ J. BAIDACOFF
-------------------------------------
Name: J. Baidacoff
-------------------------------
Title: Director
------------------------------
THE TORONTO-DOMINION BANK, a Canadian
chartered bank
By: /s/ XXXXXX XXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxx
-----------------------------------
Title: Manager Credit
----------------------------------
CANADIAN IMPERIAL BANK OF COMMERCE,
a Canadian chartered bank
By: /S/ XXXXXXX X.X. XXXXXX
-------------------------------------
Name: Xxxxxxx X.X. Xxxxxx
-----------------------------------
Title: Authorized Signatory
----------------------------------
ABN AMRO BANK, N.V., CAYMAN ISLANDS
BRANCH
By: /s/ X.X. XXXX XXXX XXXXXX
-------------------------------------
Name: X.X. Xxxx Xxxx Xxxxxx
-----------------------------------
Title: Vice President, Assistant
Credit Vice President
--------------------------------
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ANNEX 1
EXHIBIT B
NOTICE OF BORROWING
_______________,199__
The undersigned _____________ (the "Borrower") hereby gives you notice
irrevocably, pursuant to Section 2.02 of that certain Amended and Restated
Revolving Credit Agreement, dated as of September 6, 1996 (as the same may be
amended or restated from time to time, the "Amended and Restated Credit
Agreement") executed by and among Lakehead Pipe Line Company, Inc., Lakehead
Pipe Line Partners, L.P., Lakehead Services, Limited Partnership, Lakehead Pipe
Line Company, Limited Partnership; the Bank of Montreal, as Agent for the
Banks; Xxxxxx Trust and Savings Bank, as Collateral Agent for the Banks; and
the Banks shown on Schedule 1.01 thereto of the Borrowing(s) specified below:
I. PRIME RATE LOAN:
(A) Aggregate Principal Amount: $___________
(B) Date of Borrowing: __________,199__
(C) Prime Rate Loan Security: Qualifying Securities ___OR
Mortgaged Properties____
Collateral Account Number ___________
Trust Number __________
II. CD RATE LOAN:
(A) Aggregate Principal Amount: $__________
(B) Date of Borrowing: __________,199__
(C) CD Rate Loan Security: Qualifying Securities ___ OR
Mortgaged Properties
(D) CD Rate Initial Interest Period: ____ days(1)
____________
(1) Select Interest Period which is not more than 365 days, except that
such period may be longer with the prior consent of the Banks.
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Collateral Account Number________________
Trust Number__________________
III. LIBOR RATE LOAN:
(A) Aggregate Principal Amount: $_________________
(B) Date of Borrowing: __________________, 199_
(C) LIBOR Rate Loan Security: Qualifying Securities____ OR
Mortgaged Properties____
(D) LIBOR Rate Initial Interest Period: ____________ months(2)
Collateral Account Number________________
Trust Number____________________
IV. The Borrowing(s) herein requested are to be received in immediately
available funds on _________, ______________, 199_ in the following
account:
Bank Name: ______________________________
ABA Number: ______________________________
Account Title: ______________________________
Account Number: ______________________________
Capitalized terms used herein without definition have the meanings
assigned to them in the Amended and Restated Credit Agreement.
_____________________________________
By: _________________________________
Name: _______________________________
Title: ______________________________
By: _________________________________
Name: _______________________________
Title: ______________________________
_______________
(2) Select Interest Period which is not more than 12 months, except
that such period may be longer with the prior consent of the
Banks.
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CONFIRMATION OF RECEIPT BY AGENT [FAX TO: (000) 000-0000] BANK OF MONTREAL
BY: DATE:
------------------------------- ----------------------------
(signed)
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