Exhibit 10.1


 


FIFTH AMENDMENT


 


This Fifth
Amendment (this “Fifth Amendment”) is entered into as of February 28, 2006 by
and among TC PipeLines, LP, a Delaware limited partnership (the “Borrower”),
the Lenders party to the Credit Agreement referred to below, and JPMorgan Chase
Bank, National Association (successor by merger to Bank One, NA), as agent for
such Lenders.  The parties hereto agree
as follows:


 


WHEREAS, the
Borrower and JPMorgan Chase Bank, N. A. (successor by merger to Bank One, NA),
individually and as Agent are parties to that certain Credit Agreement dated as
of August 22, 2000 and amended pursuant to a First Amendment and Waiver dated
as of April 15, 2002, a Second Amendment dated as of September 30, 2002, a
Third Amendment dated as of March 8, 2004 and a Fourth Amendment dated as of
June 1, 2004 (as so amended, the “Agreement”), pursuant to which the Lenders
party thereto agreed to make extensions of credit available to the Borrower on
the terms and conditions set forth therein; and


 


WHEREAS, the
Borrower has requested amendments to the terms of the Agreement as are provided
for in this Fifth Amendment and, subject to the terms and conditions of this
Fifth Amendment, the Lenders and the Agent are willing to agree to the
requested amendments;


 


NOW, THEREFORE, in consideration of the undertakings set forth herein
and other good and valuable consideration, the receipt of which is hereby
acknowledged, the Borrower, the Agent, and the Lenders hereby agree as follows:


 


Section 1.  Defined
Terms.  Capitalized
terms used and not otherwise defined in this Fifth Amendment shall have the
meanings attributed to them in Article I of the Agreement.


 


Section 2.  Amendment
of Agreement.  Upon
the satisfaction of the conditions precedent set forth in Section 4 of this
Fifth Amendment but effective as of the date hereof, the Agreement shall be
amended as follows:


 


(a)  The
definition of “Commitment” set forth in Article I of the Agreement is hereby
amended by deleting it in its entirety and substituting in lieu thereof the
following new definition of “Commitment”:


 


“‘Commitment’ means, for each Lender, the obligation
of such Lender to make Loans not exceeding the amount set forth opposite its
signature to the Fifth Amendment, as it may be modified as a result of any
assignment that has become effective pursuant to Section 12.3.2, or as
otherwise modified from time to time pursuant to the terms hereof.”


 


(b)  Article I of the Agreement
is hereby amended by adding thereto between the existing definitions of “Federal
Funds Effective Rate” and “Floating Rate” the following new definition of “Fifth
Amendment”:


 

















 


“‘Fifth Amendment’ means that certain Fifth Amendment dated as of February
28, 2006 among the Borrower, the Agent and the Lenders pursuant to which this
Agreement was amended as provided therein.”


 


(c)  The
definition of “Pricing Schedule” set forth in Article I of the Agreement is
hereby amended by deleting it in its entirety and substituting in lieu thereof
the following new definition of “Pricing Schedule”:


 


“‘Pricing Schedule” means the Schedule attached to the
Fifth Amendment identified as such.”


 


(d)  The
definition of “Termination Date” set forth in Article I of the Agreement is
hereby amended by deleting it in its entirety and substituting in lieu thereof the
following new definition of “Termination Date”:


 


“‘Termination Date’ means February 27, 2007 or any
earlier date on which the Aggregate Commitment is reduced to zero or otherwise
terminated pursuant to the terms hereof.”


 


(e)  The Pricing
Schedule attached to the Agreement is hereby amended by deleting it in its
entirety and substituting in lieu thereof the Pricing Schedule attached to this
Fifth Amendment.


 


Section 3.  Representations
and Warranties.  In
order to induce the Lenders to execute and deliver this Fifth Amendment, the
Borrower hereby confirms, reaffirms and restates as of the date hereof the
representations and warranties set forth in Article V of the Agreement as
amended by this Fifth Amendment provided that such representations and warranties
shall be and hereby are amended as follows: each reference therein to “this
Agreement” (including, without limitation, each such a reference included in
the term “Loan Documents” and all indirect references such as “hereby”, “herein”,
“hereof” and “hereunder”) shall be deemed to be a collective reference to the
Agreement, this Fifth Amendment and the Agreement as amended by this Fifth
Amendment.  A Default under and as
defined in the Agreement as amended by this Fifth Amendment shall be deemed to
have occurred if any representation or warranty made pursuant to the foregoing
sentence of this Section 3 shall be materially false as of the date on which
made.


 


Section 4.  Conditions
Precedent.  This
Fifth Amendment and the amendments provided for herein shall become effective
as of the date hereof on the date (the “Closing Date”) on which the Agent shall
have executed a counterpart of this Fifth Amendment and received all of the
following:


 


(a) 
Counterparts of this Fifth Amendment duly executed and delivered by the
Lender and the Borrower.


 


(b) 
A copy, certified as of the Closing Date by the Secretary or an
Assistant Secretary of the General Partner, of the Partnership Agreement,
together with all amendments.


 


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(c)  A
copy, certified as of the Closing Date by the Secretary or an Assistant
Secretary of the General Partner, of resolutions
of the General Partner’s Board of
Directors authorizing the General Partner’s execution and delivery on behalf of
the Borrower of this Fifth Amendment.


 


(d)  An incumbency certificate
dated the Closing Date, executed by the Secretary or an Assistant Secretary of
the General Partner, which shall identify by name and title and bear the
signatures of the officers of the General Partner authorized to act on behalf
of the General Partner in its capacity as a general partner of the Borrower,
upon which certificate the Agent and the Lenders shall be entitled to rely
until informed of any change in writing by the Borrower.


 


(e)  A written opinion of counsel
to the Borrower and the General Partner, dated the Closing Date and addressed
to the Lenders in substantially the form of Exhibit A to this Fifth Amendment.


 


(f)  The Borrower shall have paid
JPMorgan chase Bank, N.A. a $10,000 up-front fee.


 


Section 5.  Effect
on the Agreement. 
Except to the extent of the specific amendments provided for herein, all
of the representations, warranties, terms, covenants and conditions of the
Agreement and the other Loan Documents (i) shall remain unaltered, (ii) shall
continue to be, and shall remain, in full force and effect in accordance with
their respective terms, and (iii) are hereby ratified and confirmed in all
respects.  Upon the effectiveness of this
Fifth Amendment, all references in
the Agreement (including references in the Agreement as amended by this Fifth Amendment) to “this Agreement”
(including, without limitation, each such a reference included in the term “Loan
Documents” and all indirect references such as “hereby”, “herein”, “hereof” and
“hereunder”) shall be deemed to be a collective reference to the Agreement as
amended by this Fifth Amendment.


 


Section 6.  Expenses.  The Borrower shall reimburse the Agent for
any and all reasonable costs, internal charges and out-of-pocket
expenses (including attorneys’ fees and time charges of attorneys for the
Agent, which attorneys may be employees of the Agent) paid or incurred by the
Agent in connection with the preparation, review, execution and delivery of
this Fifth Amendment.


 


Section 7.  Entire
Agreement.  This Fifth Amendment, the Agreement as amended
by this Fifth Amendment and the
other Loan Documents embody the entire agreement and understanding between the
parties hereto and supersede any and all prior agreements and understandings between
the parties hereto relating to the subject matter hereof.


 


Section 8.  Headings.  The headings, captions, and arrangements used
in this Fifth Amendment are for
convenience only and shall not affect the interpretation of this Fifth Amendment.


 


SECTION 9.  GOVERNING
LAW.  THIS FIFTH AMENDMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION,
735 ILCS SECTION 105/5-1 ET SEQ, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT
OF LAWS PROVISIONS) OF THE STATE


 


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OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS LOCATED IN ILLINOIS.


 


Section 10. 
Counterparts. 
This Fifth Amendment may be executed in any number of counterparts, all
of which taken together shall constitute one agreement, and any of the parties
hereto may execute this Fifth Amendment by signing any such counterpart.


 


IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment
to be duly executed as of the date first above written.


 


	
   

  	
  TC PIPELINES LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  TC Pipelines GP,
  Inc.,

  
	
   

  	
   

  	
  its general
  partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Amy Leong

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Amy Leong

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Controller

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Donald R. Marchand

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Donald R. Marchand

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title: 

  	
  Vice-President and Treasurer

  
	
  Commitments

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  $20,000,000

  	
   

  	
  JPMORGAN CHASE
  BANK, N.A.,

  
	
   

  	
   

  	
  individually as
  a Lender and as Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Christine Chan

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Christine Chan

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


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PRICING SCHEDULE


 


APPLICABLE MARGIN


 




	
  Level I Status

  	
   

  	
  0.75

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Level II Status

  	
   

  	
  1.00

  	
  %

  






 


The Applicable Margin shall be determined in accordance with the
foregoing table based on the Borrower’s Status as reflected in the then most
recent Financials.  Adjustments, if any,
to the Applicable Margin shall be effective five business days after the Agent
has received the applicable Financials. 
If the Borrower fails to deliver the Financials to the Agent at the time
required pursuant to the Credit Agreement, then the Applicable Margin shall be
the highest Applicable Margin and Applicable Fee Rate set forth in the
foregoing table until five days after such Financials are so delivered.


 


APPLICABLE FEE RATE


 




	
  Usage
  < 25%

  	
   

  	
  0.30

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Usage
  > 25% and < 75%

  	
   

  	
  0.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Usage
  > 75%

  	
   

  	
  0.20

  	
  %

  






 


The Applicable Fee Rate shall be determined daily in accordance with the
foregoing table based on the Usage on such day.


 


For the purposes of this Pricing Schedule, the following terms have the
following meanings, subject to the first paragraph of this Pricing Schedule:


 


“Financials” means the annual or
quarterly financial statements of the Borrower and its consolidated
Subsidiaries, if any, delivered pursuant to the Credit Agreement.


 


“Level I Status” exists at any
date if, as of the last day of the fiscal quarter of the Borrower referred to
in the most recent Financials, Total Debt is less than 15% of
Capitalization.


 


“Level II Status” exists at any
date if, as of the last day of the fiscal quarter of the Borrower referred to
in the most recent Financials, the Borrower has not qualified for Level I
Status.


 


“Status” means Level I Status or
Level II Status.


 


“Usage” means, as of any date,
the percent of the Aggregate Commitment then in effect represented by the
aggregate principal amount of all Advances then outstanding under the Agreement.


 

















 


EXHIBIT A


to Fifth Amendment


 


FORM OF OPINION


 


February      ,
2006


 


The Agent and the Lenders who are parties to the


Credit Agreement described below.


 


Ladies and Gentlemen:


 


On behalf of TC PipeLines, LP, a
Delaware limited partnership (the “Borrower”), and TC PipeLines GP, Inc., a
Delaware corporation which is the general partner of the Borrower (the “General
Partner”), I,                
[Kristine L. Delkus],             [Vice-President,
Law, Power and Regulatory], of TransCanada PipeLines Limited, licensed to
practice law in the State of New York, have agreed to provide an in-house legal
opinion on certain matters pursuant to Section 4(e) of the Fifth Amendment
dated as of February 28, 2006 (the “Fifth
Amendment”) to that certain Credit Agreement dated as of August 22, 2000 and amended pursuant to a
First Amendment and Waiver dated as of April 15, 2002, a Second Amendment dated
as of September 30, 2002, a Third Amendment dated as of March 8, 2004 and a
Fourth Amendment dated as of June 1, 2004 (as so amended, the “Agreement”)
among the Borrower, the Lenders named therein, and JPMorgan Chase Bank, N.A.
(successor by merger to Bank One, NA), as Agent, which as amended pursuant to
the Fifth Amendment provides for Advances in an aggregate principal amount not
exceeding $20,000,000 at any one time outstanding.  All capitalized terms used in this opinion
and not otherwise defined herein shall have the meanings attributed to them in
the Agreement.


 


I am qualified to practice law only in the State of New York.  For purposes of this opinion, I have assumed
that the laws of the State of Illinois are the same as the laws of the State of
New York.  I made no investigation of the
laws of any jurisdiction other than, and the opinions hereinafter expressed are
confined to, the laws of the State of New York and the federal laws of the
United States.


 


I have examined the Partnership Agreement, the certificate of
incorporation and by-laws of the General Partner, resolutions of the Board of
Directors of the General Partner, the Agreement, the Fifth Amendment and such
other matters of fact and law which I have deemed necessary or relevant in
order to render this opinion.  In
reviewing these documents, I have assumed, as to all parties other than the
General Partner and the Borrower, the genuineness of all signatures, the legal
capacity at all relevant times of any natural persons signing any documents,
the authenticity of all documents submitted to me as originals, the conformity
to authentic originals of all documents submitted to me as certified or true
copies or as reproductions (including documents received by facsimile machine)
and the accuracy of all certificates of public officials and corporate
officers.  As of the date hereof, based
upon and subject to the foregoing, and to the qualifications hereinafter
expressed, it is my opinion that:


 

















 


1.  The Borrower is a limited partnership duly
and properly organized, validly existing and in good standing under the laws of
the State of Delaware.


 


2.  The Partnership Agreement is in full force
and effect, and the Borrower has full power and authority under the Partnership
Agreement and the laws of the State of Delaware to own its property, to conduct
the business in which it is currently engaged, and to perform its obligations
under the Fifth Amendment and the Agreement as amended by the Fifth Amendment.


 


3.  The General Partner is a corporation duly and
properly organized, validly existing and in good standing under the laws of the
State of Delaware.


 


4.  The General Partner has full corporate power and authority to be the
general partner of the Borrower and to execute and deliver the Fifth Amendment
on behalf of the Borrower, and the execution and delivery by the General
Partner on behalf of the Borrower of the Fifth Amendment has been duly
authorized by proper corporate proceedings on the part of the General Partner.


 


5.  The execution and delivery by the General
Partner on behalf of the Borrower of the Fifth Amendment and the performance by
the Borrower of its obligations under the Fifth Amendment and the Agreement as amended by the Fifth Amendment have been duly authorized in
accordance with the Partnership Agreement and will not:


 


(a)  require any
consent of the General Partner’s shareholders;


 


(b)  require any
consent of the Borrower’s limited partners;


 


(c)  violate (i) any law, rule, regulation, order,
writ, judgment, injunction, decree or award binding on the Borrower or the
General Partner, or (ii) the Partnership Agreement, or (iii) the certificate of
incorporation or by-laws of the General Partner, or (iv) the provisions of any
indenture, instrument or agreement to which the Borrower or the General Partner
is a party or is subject, or by which the Borrower or the General Partner, or
any Property of the Borrower or the General Partner, is bound, or conflict with
or constitute a default thereunder; or


 


(d) result in, or
require, the creation or imposition of any Lien in, of or on the Property of
the Borrower pursuant to the terms of any indenture, instrument or agreement
binding upon the Borrower.


 


6.  The Fifth Amendment has been duly executed and delivered by the General Partner on
behalf of the Borrower and the Fifth Amendment
and the Agreement as amended by the Fifth Amendment constitute legal, valid and
binding obligations of the Borrower enforceable against the Borrower in
accordance with their terms except to the extent the enforcement thereof may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors’ rights generally and subject also to the availability of equitable
remedies if equitable remedies are sought.


 


2

















 


7.  There is no litigation, arbitration,
governmental investigation, proceeding or inquiry pending or, to the best of
our knowledge after due inquiry, threatened against the Borrower or the General
Partner which, if adversely determined, could reasonably be expected to have a
Material Adverse Effect.


 


8.  No order, consent, adjudication, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, or other action in respect of any governmental or public
body or authority, or any subdivision thereof, which has not been obtained by
the Borrower or the General Partner, is required to be obtained by the Borrower
or the General Partner in connection with the execution and delivery of the
Fifth Amendment, the borrowings
under the Agreement as amended by the Fifth Amendment, the payment and performance by
the Borrower of the Obligations, or the legality, validity, binding effect or
enforceability of the Fifth Amendment or the Agreement as amended by the Fifth Amendment.


 


This opinion may be relied upon by the Agent, the Lenders and their
participants, assignees and other transferees, and only in connection with the
transaction described above, and should not otherwise be referred to in any
other document without prior written consent.


 


Very truly yours,


 


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