Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement dated as of April 9, 2004, (this
"Amendment") is among Northern Border Pipeline Company, a Texas general
partnership, as Borrower (the "Borrower"), the Lenders (as defined below) and
Bank One, NA, as Administrative Agent (in such capacity, the "Administrative
Agent").
INTRODUCTION
Reference is made to the Credit Agreement, dated as of May 16, 2002 (as
modified, the "Credit Agreement"), among the Borrower, the lenders parties
thereto (the "Lenders"), the Syndication and Documentation Agents and the
Arranger (each as defined therein) and the Administrative Agent.
On March 9, 2004, Enron Corp. registered as a public utility holding
company, and as of the date of this Amendment, such registration has been
declared or has become effective.
In connection with the foregoing, the Borrower, the Lenders, and the
Administrative Agent have agreed to amend the Credit Agreement to reflect the
current regulatory status of the Borrower in accordance with the terms set forth
herein. Capitalized terms used herein but not defined herein shall have the
meanings specified by the Credit Agreement.
Therefore, in connection with the foregoing and for other good and
valuable consideration, the Borrower, the Lenders, and the Administrative Agent
hereby agree as follows:
Section 1. Amendments to Credit Agreement.
(a) Section 5.16 of the Credit Agreement is amended by replacing such
Section in its entirety with the following:
SECTION 5.16 Public Utility Holding Company Act.
(a) (i) until the date (if any) on which Enron Corp. ceases
to be a "registered holding company" under the Public Utility
Holding Company Act of 1935, as amended ("PUHCA"), the Borrower and
its Subsidiaries are each subject to regulation as a "subsidiary
company" of a "registered holding company" within the meaning of
PUHCA; and (ii) commencing on the earlier of (A) the date on which
Enron Corp. ceases to be a "registered holding company" under PUHCA
and (B) the date on which Enron Corp. ceases to own, directly or
indirectly, a partnership interest in the Borrower, and thereafter,
none of the Borrower or any of its Subsidiaries is a "holding
company" or a "subsidiary company" of a "registered holding
company", or an "affiliate" of a "registered holding company" or of
a "subsidiary company" of a "registered holding company", within the
meaning of PUHCA.
(b) The Borrower's performance of the Loan Documents,
incurrence of Indebtedness contemplated by this Agreement and the
borrowing, repayment, and reborrowing of Loans hereunder is
permitted by PUHCA and requires no authorization or approval of, or
any notice to or filing with, or any exemption from, any
governmental or public body or authority, or any subdivision
thereof, other than (i) such authorizations, approvals, and
exemptions as have already been obtained or notices or filings as
have already been made or (ii) notices required to be filed after
the incurrence of Indebtedness pursuant to applicable rules under
PUHCA.
(c) The Borrower will timely comply with all applicable
reporting requirements in connection with the incurrence of
Indebtedness hereunder.
Section 2. Waiver. The Administrative Agent and the Lenders waive any
Default or Event of Default that may have existed during the period from
December 29, 2003 through the effective date of this Amendment solely due to the
representation and warranty in Section 5.16 regarding the PUHCA status of the
Borrower and its Subsidiaries ceasing to be true and correct as a result of the
SEC's denial the applications of Enron Corp. for exemptions from regulation
under PUHCA. The foregoing waiver is limited to the extent described above and
shall not be construed to be a waiver of any other terms of the Credit Agreement
or of the Loan Documents.
Section 3. Representations and Warranties. The Borrower represents and
warrants that (a) the execution, delivery and performance of this Amendment are
within the partnership power and authority of the Borrower and have been duly
authorized by appropriate proceedings, (b) the execution, delivery and
performance of this Amendment requires no authorization or approval of, or any
notice to or filing with, or any exemption from, any governmental or public body
or authority, or any subdivision thereof, other than (i) such authorizations,
approvals, and exemptions as have already been obtained or notices or filings as
have already been made or (ii) notices required to be filed after the incurrence
of Indebtedness pursuant to applicable rules under PUHCA, (c) this Amendment
constitutes a legal, valid, and binding obligation of the Borrower enforceable
in accordance with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights of
creditors generally and general principles of equity, (d) no Default or Event of
Default is continuing after giving effect to the waiver in Section 2 above, and
(e) the representations and warranties set forth in the Credit Agreement, as
modified hereby, are true and correct as of the date of this Agreement.
Section 4. Effectiveness. This Amendment shall become effective as of the
date first set forth above, and the Credit Agreement shall be amended as
provided herein as of such effective date, upon the satisfaction of the
following conditions precedent:
(a) the Borrower shall have delivered to the Administrative Agent
written opinions of Xxxxxxxx Xxxxxxx LLP in form and substance acceptable to the
Administrative Agent and the Lenders; and
(b) the representations and warranties in this Amendment shall be true
and correct.
Section 5. Choice of Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Texas
(without regard to conflicts of law principles).
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Section 6. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, and may be executed and
delivered by telecopier.
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EXECUTED as of the date first above written.
NORTHERN BORDER PIPELINE COMPANY
By: Northern Plains Natural Gas Company,
Operator
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President & Treasurer
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BANK ONE, N.A.
individually and as Administrative Agent
By: /s/ Xxxxx Xxxx
Xxxxx Xxxx
First Vice President
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CITIBANK, N.A.
By: /s/ Xxx Xxxxx
Name: Xxx X. Xxxxx
Title: Attorney-In-Fact
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BANK OF MONTREAL
By: /s/ Cahal X. Xxxxxxx
Name: Cahal X. Xxxxxxx
Title: Vice President
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SUNTRUST BANK
By: /s/ Xxxx Xxxxxxxx Xxxx
Name: Xxxx Xxxxxxxx Xxxx
Title: Vice President
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WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
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ROYAL BANK of CANADA
By: /s/ Xxx X. Xxxxxxxxxx
Name: Xxx X. Xxxxxxxxxx
Title: Attorney-In-Fact
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