november32008exhibit102.htm


     

      
        

      

    

    Exhibit
10.2

    
 

    FIRST AMENDMENT TO AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT

    


    


    THIS FIRST AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT (this “Amendment”),
is made and entered into as of July 31, 2008, by and among NORTHERN BORDER
PIPELINE COMPANY, a Texas general partnership (the “Borrower”),
the several banks and other financial institutions from time to time party
hereto (collectively, the “Lenders”),
SUNTRUST BANK, in its capacity as Administrative Agent for the Lenders (the
“Administrative
Agent”), as issuing bank (the “Issuing
Bank”) and as swingline lender (the “Swingline
Lender”), WACHOVIA BANK, NATIONAL ASSOCIATION, as syndication agent (the
“Syndication
Agent”) and BMO CAPITAL MARKETS, CITIBANK, N.A., and MIZUHO CORPORATE
BANK, LTD., as
Co-Documentation Agents.

    


    W I T N E S S E T H:

    


    WHEREAS,
the Borrower, the Lenders, the Swingline Lender, the Issuing Bank, the
Administrative Agent and the other agents party thereto are parties to a certain
Amended and Restated Revolving Credit Agreement, dated as of April 27, 2007 (as
amended, restated, supplemented or otherwise modified from time to time, the
“Credit
Agreement”; capitalized terms used herein and not otherwise defined shall
have the meanings assigned to such terms in the Credit Agreement), pursuant to
which the Lenders and the Issuing Bank have made certain financial
accommodations available to the Borrower;

     

    WHEREAS,
the Borrower has requested that the Lenders, the Swingline Lender, the Issuing
Bank 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, the Swingline Lender,
the Issuing Bank and the Administrative Agent agree as follows:

    


    1. Amendments.

     

    (a)  Section 1.1of the Credit
Agreement is hereby amended by adding the following definition of Bison Pipeline
Acquisition Agreement in the appropriate alphabetical order:

     

    “Bison Pipeline Acquisition
Agreement” shall mean that certain acquisition agreement between the
Borrower and TransCanada Pipeline USA Ltd. or its wholly owned subsidiary in
form and substance satisfactory to the Administrative Agent and on terms
substantially similar to those set out in the indication of interest letter
dated as of July 28, 2008 between the Borrower and TransCanada Pipeline USA
Ltd., pursuant to which the Borrower sells all of the membership interests it
owns in Bison Pipeline LLC to TransCanada
Pipeline USA Ltd. or its wholly owned subsidiary.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (b)  Section 7.3(b) of the
Credit Agreement is hereby amended by replacing subsection B of such Section in
its entirety with the following:

     

    (b)           The
Borrower shall not lease, sell or otherwise dispose of its assets to any other
Person except: (i) sales of inventory and other assets in the ordinary
course of business, (ii) leases, sales or other dispositions of its assets
that, together with all other assets of Borrower previously leased, sold or
disposed of (other than disposed of pursuant to this Section 7.3(b))
during the twelve-month period ending with the month in which any such lease,
sale or other disposition occurs, do not constitute a substantial portion of the
assets of Borrower, (iii) sales of assets which are concurrently leased
back, (iv) dispositions of assets which are obsolete or no longer used or
useful in the business of Borrower, (v) as permitted pursuant to Section 14 or
Section 15 (to the extent it applies to a merger pursuant to Section 14) of
the Borrower Partnership Agreement, and (vi) the sale of membership interests in
Bison Pipeline LLC pursuant to the Bison Pipeline Acquisition
Agreement.

     

    (c)  Section 7.5 of the
Credit Agreement is hereby amended by replacing such Section  in its
entirety with the following:

     

    Section
7.5    Restricted
Payments.  The Borrower will not, and will not permit its
Subsidiaries to, declare or make, or agree to pay or make, directly or
indirectly, any dividend on any class of its stock, or make any payment on
account of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, retirement, defeasance or other acquisition of, any shares
of common stock or Indebtedness subordinated to the Obligations of the Borrower
or any Guarantee thereof or any options, warrants, or other rights to purchase
such common stock or such Indebtedness, whether now or hereafter outstanding
(each, a “Restricted
Payment”), except for (i) dividends payable by the Borrower solely in
shares of any class of its common stock, (ii) Restricted Payments made by
any Subsidiary to the Borrower or to another Subsidiary, on at least a pro rata
basis with any other shareholders if such Subsidiary is not wholly owned by the
Borrower and other wholly owned Subsidiaries, (iii) if no Event of Default has
occurred or would result therefrom, distributions on the partnership interests
in accordance with the Borrower Partnership Agreement and (iv) if no Event of
Default has occurred or would result therefrom, distributions of proceeds from
the Bison Pipeline Acquisition Agreement.

     

    (d)  Section 7.7 of the
Credit Agreement is hereby amended by replacing such Section  in its
entirety with the following:

     

    Section
7.7        Transactions
with Affiliates.  Except as set forth in Schedule 7.7, the
Borrower will not, and will not permit any of its Subsidiaries to, sell, lease
or otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of
business at prices and on terms and conditions not less favorable to the
Borrower or such Subsidiary than could be obtained on an arm’s-length basis from
unrelated third parties, (b) any Restricted Payment permitted by Section 7.5 and
(c) pursuant to the Bison Pipeline Acquisition Agreement.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    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 each of the following
documents:

    


    (a)        executed
counterparts to this Amendment from the Borrower, each of the Guarantors and the
Lenders; and

    


    (b)        the
indication of interest letter dated as of July 28, 2008 between the Borrower and
TransCanada Pipeline USA Ltd. substantially setting out the terms of the Bison
Pipeline Acquisition Agreement.

    


    3.    Representations
and Warranties.  To induce the
Lenders and the Administrative Agent to enter into this Amendment, the Borrower
hereby represents and warrants to the Lenders and the Administrative
Agent:

    


    (a)         The
Borrower, each of its Subsidiaries and the Operator (i) is duly orga­nized,
validly existing and in good standing as a corporation, partnership or limited
liability company under the laws of the jurisdiction of its organization, (ii)
­has all requisite power and authority to carry on its business as now
conducted, and (iii) is duly qualified to do business, and is in good
standing, in each jurisdiction where such qualification is required, except
where a failure to be so qualified could not reasonably be expected to result in
a Material Adverse Effect.

    


    (b)   The execution, delivery and
performance by the Borrower of the Loan Documents are within such Person’s
organizational powers and have been duly authorized by all necessary
organizational, and if required, shareholder, partner or member,
action;

    


    (c)         The
execution, delivery and performance by the Borrower of this Agreement and the
other Loan Documents (i) do not require any consent or approval of, registration
or filing with, or any action by, any Governmental Authority, except those as
have been obtained or made and are in full force and effect, (ii) will not
violate any Requirements of Law applicable to the Borrower and any of its
Subsidiaries, or any judgment, order or ruling of any Governmental Authority,
(iii) will not violate or result in a default under any indenture, agreement or
other instrument binding on the Borrower or any of its Subsidiaries or any of
its assets or give rise to a right thereunder to require any payment to be made
by the Borrower or any of its Subsidiaries, in each case other than violations,
defaults or rights which could not reasonably be expected to result in a
Material Adverse Effect, and (iv) will not result in the creation or imposition
of any Lien on any asset of the Borrower or any of its Subsidiaries, except
Liens (if any) created under the Loan Documents;

     

    (d)         This
Amendment has been duly executed and delivered by the Borrower, and constitutes valid and
binding obligations of the Borrower, en­forceable against it in accordance
with its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the enforcement of
creditors’ rights generally and by general principles of equity;
and

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    (e)         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.    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.

    

    


    5.    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.

    


    6.    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.

    


    7.    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.

    


    8.    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.

    


    9.    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.

    
      


      10.  
  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 To
Follow]


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    

 

    
      IN WITNESS WHEREOF, the parties hereto
have caused this Amendment to be duly executed, under seal in the case of the
Borrower and the Guarantors, by their respective authorized officers as of the
day and year first above written.

      

        


        
          	 
      	
                  BORROWER:

                   

                  NORTHERN
      BORDER PIPELINE COMPANY

                   

                
	 
      	
                  By:

                	
                  TransCanada
      Northern Border Inc., its Operator

                   

                   

                   

                
	 
      	
                  By

                	
                  /s/ Paul F.
      Miller                                                                        

                
	 
      	 
      	
                  Name: 
      Paul F. Miller

                
	 
      	 
      	
                  Title: 
      Principal Executive Officer,Vice
      President and General Manager

                
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                  By

                	
                  /s/ Patricia M.
      Wiederholt                                                                

                  Name: 
      Patricia M. Wiederholt

                
	 
      	 
      	
                  Title: 
      Principal Financial Officer and
Controller

                


        

        


        



        
          
            
              [SIGNATURE
PAGE TO FIRST AMENDMENT]

              


            

             


          

          
             


            
              

            

          

          
             


          

        


        


        


        
          	 
      	
                  LENDERS:

                   

                  SUNTRUST
      BANK

                  as
      Administrative Agent, as Issuing Bank, as Swingline Lender and as a
      Lender

                   

                
	 
      	
                  By

                	
                  /s/ Joe McCreery            

                
	 
      	 
      	
                  Name: 
      Joe McCreery

                
	 
      	 
      	
                  Title: 
      Director

                
	 
      	 
      	 
      


        

        


        


        
          	 
      	
                  WACHOVIA
      BANK, NATIONAL ASSOCIATION

                  as
      Syndication Agent and as a Lender

                   

                
	 
      	
                  By

                	
                  /s/ Lawrence P.
      Sullivan         

                
	 
      	 
      	
                  Name: 
      Lawrence P. Sullivan

                
	 
      	 
      	
                  Title: 
      Managing Director

                
	 
      	 
      	 
      


        

        


        


        


        
          	 
      	
                  BMO CAPITAL MARKETS,
      as Co-Documentation Agent

                   

                
	 
      	
                  By

                	
                  /s/ Ian M.
      Plester            

                
	 
      	 
      	
                  Name: 
      Ian M. Plester

                
	 
      	 
      	
                  Title: 
      Director

                
	 
      	 
      	 
      


        

        


        


        
          	 
      	
                  BMO
      CAPITAL MARKETS FINANCING, INC., as a
      Lender

                   

                
	 
      	
                  By

                	
                  /s/ Ian M.
      Plester            

                
	 
      	 
      	
                  Name: 
      Ian M. Plester

                
	 
      	 
      	
                  Title: 
      Director

                
	 
      	 
      	 
      


        


        
          
            
              [SIGNATURE
PAGE TO FIRST AMENDMENT]

              


            

             


          

          
             


            
              

            

          

          
             


          

        


        


        
          	 
      	
                  CITIBANK, N.A.,
      as Co-Documentation Agent and as a Lender

                   

                
	 
      	
                  By

                	
                  /s/ Andrew L.
      Kreeger         

                
	 
      	 
      	
                  Name: 
      Andrew L. Kreeger

                
	 
      	 
      	
                  Title: 
      Vice President

                
	 
      	 
      	 
      


        

        


        


        
          	 
      	
                  MIZUHO
      CORPORATE BANK, LTD., as
      Co-Documentation Agent and as a Lender

                   

                
	 
      	
                  By

                	
                  /s/  Leon
      Mo                

                
	 
      	 
      	
                  Name: 
      Leon Mo

                
	 
      	 
      	
                  Title: 
      Senior Vice President

                
	 
      	 
      	 
      


        

        


        


        
          	 
      	
                  JPMORGAN CHASE BANK,
      N.A., as Managing Agent and as a Lender

                   

                
	 
      	
                  By

                	
                  /s/ Kenneth J.
      Fatur            

                
	 
      	 
      	
                  Name: 
      Kenneth J. Fatur

                
	 
      	 
      	
                  Title: 
      Managing Director

                
	 
      	 
      	 
      


        

        


        


        


        
          	 
      	
                  EXPORT DEVELOPMENT
      CANADA, as Managing Agent and as a Lender

                   

                
	 
      	
                  By

                	
                  /s/  Janine
      Dopson              

                
	 
      	 
      	
                  Name: 
      Janine Dopson

                
	 
      	 
      	
                  Title: 
      Loan Asset Manager

                
	 
      	 
      	 
      
	 
      	
                  By

                	
                  /s/  H.
      Clysdale                                                                             

                
	 
      	 
      	
                  Name: 
      Howard Clysdale

                
	 
      	 
      	
                  Title: 
      Portfolio Manager

                


        

        


        


        


        


        


        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

        


        


        


        


        
          	 
      	
                  WELLS
      FARGO BANK N.A., as
      a Lender

                   

                
	 
      	
                  By

                	                            
	 
      	 
      	
                  Name:

                
	 
      	 
      	
                  Title:

                
	 
      	 
      	 
      


        

        


        


        


        
          	 
      	
                  BANK
      OF AMERICA, N.A., as
      a Lender

                   

                
	 
      	
                  By

                	
                  /s/ Jay Salitza                 
  

                
	 
      	 
      	
                  Name: 
      Jay Salitza

                
	 
      	 
      	
                  Title: 
      Vice President

                
	 
      	 
      	 
      


        

        


        


        


        
          	 
      	
                  ROYAL
      BANK OF CANADA, as
      a Lender

                   

                
	 
      	
                  By

                	                             
      
	 
      	 
      	
                  Name:

                
	 
      	 
      	
                  Title: