<PAGE> 1
EXHIBIT 10.23
FIRST AMENDMENT TO
364-DAY CREDIT AGREEMENT
THIS FIRST AMENDMENT TO 364-DAY CREDIT AGREEMENT (this "AMENDMENT") is
entered into as of September 21, 2000, among NORTHERN BORDER PARTNERS, L.P., a
Delaware limited partnership ("BORROWER"), NORTHERN BORDER INTERMEDIATE LIMITED
PARTNERSHIP, a Delaware limited partnership ("INTERMEDIATE PARTNERSHIP"), BANK
OF AMERICA, N.A., as Administrative Agent (the "ADMINISTRATIVE AGENT") for the
Lenders under the Credit Agreement hereinafter referenced, and the Lenders (as
defined in the Credit Agreement) party hereto.
Reference is made to the 364-Day Credit Agreement dated as of June 28,
2000 (the "CREDIT AGREEMENT") among Borrower, Administrative Agent, SunTrust
Bank as Syndication Agent, Bank One, NA, as Documentation Agent, and the Lenders
party thereto, as amended by First Amendment (the "PRIOR FIRST AMENDMENT") dated
as of June 28, 2000. Unless otherwise defined in this Amendment, capitalized
terms used herein shall have the meaning set forth in the Credit Agreement; all
Section and Schedule references herein are to Sections and Schedules in the
Credit Agreement; and all Paragraph references herein are to Paragraphs in this
Amendment.
RECITALS
A. Borrower, through its wholly-owned Subsidiary NBP Energy Pipelines,
L.L.C., proposes to purchase, from Enron North America Corp., interests in three
limited liability companies that operate natural gas pipeline and gathering
systems, and in connection with such purchase, Borrower has requested that
Lenders agree to amend certain provisions of the Credit Agreement, as herein set
forth.
B. Subject to the terms and conditions of this Amendment, Lenders are
willing to agree to such amendments.
C. This First Amendment is executed in replacement and substitution for
the Prior First Amendment.
Accordingly, for adequate and sufficient consideration, the parties
hereto agree, as follows:
PARAGRAPH 1. AMENDMENTS.
1.1 DEFINITIONS.
(a) The definition of "APPLICABLE MARGIN" is hereby amended by adding
the following paragraph to the end thereof:
During the period September 21, 2000 to (but not including)
the effective date of a Pricing/Capitalization Ratio Election
pursuant to SECTION 10.13(b), the pricing grid set forth above (the
"PRIMARY PRICING GRID") shall not apply, and in lieu thereof the
pricing grid set forth below (the "ALTERNATIVE PRICING GRID") shall
apply. Effective September 21, 2000, Category 1 pricing shall
apply. Thereafter, for so long as the Alternative Pricing Grid is
in effect, any increase or decrease in the Applicable Margin and
Applicable Amount resulting from a change in the Capitalization
Ratio shall become effective from
FIRST AMENDMENT
364-DAY CREDIT AGREEMENT
<PAGE> 2
and after the fifth Business Day after the date a Compliance
Certificate and accompanying financial statements are delivered
pursuant to SECTIONS 9.3(a) OR (b), provided, that if Borrower
fails to deliver a quarterly or annual Compliance Certificate and
accompanying financials statements when due in accordance with one
of such Sections while the Alternative Pricing Grid is in effect,
then Category 1 pricing shown in the Alternative Pricing Grid shall
apply as of the fifth Business Day after the date such Compliance
Certificate and accompanying financial statements were due. In
addition, Borrower may at any time while the Alternative Pricing
Grid is in effect deliver to the Administrative Agent a certificate
of a Responsible Officer setting forth the Capitalization Ratio,
and specifying the amount of Funded Debt and Capitalization used in
the calculation thereof, together with such supporting information
as may be required by the Administrative Agent, and the Applicable
Margin and Applicable Amount shall be adjusted from and after the
fifth Business Day after delivery of such certificate.
ALTERNATIVE PRICING GRID
<TABLE>
<CAPTION>
APPLICABLE MARGIN
-------------------------
EURODOLLAR
BASE RATE RATE
CAPITALIZATION BORROWINGS BORROWINGS UTILIZATION UNUSED COMMITMENT FEE
RATIO (BPS) (BPS) FEE (BPS) (BPS)
---------------- ---------- ---------- ------------- -------------------------
<S> <C> <C> <C> <C>
Category 1 0.0 125.0 0.0 The higher of
Applies if (x) 20.00 bps and
Capitalization (y) the amount that
Ratio is greater would apply if the
than or equal to Primary Pricing Grid
40% were in effect, based
on the Index Debt as
therein set forth
---------------- ---------- ---------- ------------- -------------------------
Category 2 0.0 112.5 0.0; The higher of
Applies whenever provided, (x) 20.00 bps and
Category 1 does however, that (y) the amount that
not apply, until: if the Index would apply if the
Capitalization Debt Rating Primary Pricing Grid
Ratio is less is in were in effect, based
than or equal to Category 5 as on the Index Debt as
35% and a Pricing/ shown on the therein set forth
Capitalization Primary
Ratio Election is Pricing Grid,
made or deemed then the
made Utilization
Fee shall be
12.5 basis
points
-----------------------------------------------------------------------------------------
</TABLE>
2 FIRST AMENDMENT
<PAGE> 3
If the Capitalization Ratio reduces to 35% or less at any time
while the Alternative Pricing Grid is in effect, then the
Alternative Pricing Grid shall remain in effect unless and until a
Pricing/Capitalization Ratio Election is made or deemed made.
(b) The definitions of "DEBT" and "FUNDED DEBT" each are amended hereby
by adding the following words to the end of subclause (e) thereof:
", provided, however, that the obligations referenced in this
subclause (e) shall not include indebtedness (which is not assumed
or guaranteed by Borrower or any Subsidiary of Borrower) under the
Fort Union Project Finance Documents which is secured by Liens on
the limited liability company interests of ECT Powder River, L.L.C.
in Fort Union, L.L.C., nor indebtedness (which is not assumed or
guaranteed by Borrower or any Subsidiary of Borrower) which is
secured by Liens on the limited liability company interests of ECT
Wind River, L.L.C. in Lost Creek, L.L.C."
(c) The following definitions shall be alphabetically inserted in
SECTION 1.1 to read, as follows:
ALTERNATIVE PRICING GRID means the second of the two pricing grids
that are set forth in the definition of APPLICABLE MARGIN.
ENRON NORTH AMERICA PURCHASE means the purchase by Guarantor,
through its Subsidiary NBP Energy Pipelines, L.L.C., of the
interests of Enron North America Corp. ("ENA") in Enron Midstream
Services, L.L.C., ECT Wind River, L.L.C. and ECT Powder River,
L.L.C. pursuant to the Purchase and Sale Agreement dated September
21, 2000 between NBP Energy Pipelines, L.L.C. and ENA, for a
purchase price not to exceed $205 million (as such purchase price
may be adjusted pursuant to the terms of said Purchase and Sale
Agreement).
FORT UNION, L.L.C. means Fort Union Gas Gathering, L.L.C., a
Delaware limited liability company.
FORT UNION PROJECT FINANCE DOCUMENTS means the Construction and
Term Credit Agreement dated as of April 16, 1999 among Fort Union,
L.L.C. as Borrower, BankBoston, N.A., as Administrative Agent and
the other Lenders and Agents parties thereto, and the other
agreements executed as security therefor or pursuant thereto, as
the same may from time to time be amended.
LOST CREEK CONSTRUCTION LOAN SPONSOR GUARANTEE means the Sponsor
Guarantee dated as of September 24, 1999 in favor of Barclays Bank
PLC, as administrative agent, as supplemented by Guarantee
Supplement No. 1 dated September 24, 1999, as in effect on
September 21, 2000.
LOST CREEK, L.L.C. means Lost Creek Gathering Company, L.L.C., a
Delaware limited liability company.
LOST CREEK PROJECT FINANCE DOCUMENTS means the Construction and
Term Credit Agreement dated as of September 24, 1999 among Lost
Creek, L.L.C. as
3 FIRST AMENDMENT
<PAGE> 4
Borrower, Barclays Bank PLC, as Administrative Agent and the other
Lenders party thereto and the other agreements executed as security
therefor or pursuant thereto, as the same may from time to time be
amended.
PRICING/CAPITALIZATION RATIO ELECTION means an election pursuant to
SECTION 10.13(B).
PRIMARY PRICING GRID means the first of the two pricing grids that
are set forth in the definition of APPLICABLE MARGIN.
SENIOR NOTES has the meaning set forth in Section 11.7(a).
1.2 DEBT AND GUARANTIES. SECTION 10.1 is amended by adding the word
"and" to the end of Section 10.1(b)(vii) and adding the following new SECTION
10.1(b)(viii) and SECTION 10.1(b)(ix):
(viii) The guaranty by Intermediate Partnership of
Borrower's obligations under the Senior Notes; and
(ix) Debt of Intermediate Partnership and Borrower pursuant
to the Lost Creek Construction Loan Sponsor Guarantee, provided
that the principal amount of the loan guaranteed pursuant thereto
may not exceed 35% of $66 million;
1.3 LIENS. SECTION 10.2 is amended by changing the period (".") at the
end of SECTION 10.2(e) to a comma (","), and by adding the following new
SECTIONS 10.2(f) AND (g):
(f) Liens on the limited liability company interests in Fort Union,
L.L.C. which are owned by ECT Powder River L.L.C., a Delaware
limited liability company, which Liens secure amounts owed under
the Fort Union Project Finance Documents; and
(g) Liens on the limited liability company interests in Lost Creek,
L.L.C. which are owned by ECT Wind River, L.L.C., a Delaware
limited liability company, which Liens secure amounts owed under
the Lost Creek Project Finance Documents.
1.4 CAPITALIZATION RATIO. SECTION 10.13 is amended in its entirety to
read as follows:
10.13 CAPITALIZATION RATIO. (a) Borrower and Intermediate
Partnership (unconsolidated with other Subsidiaries) shall never
permit the Capitalization Ratio to be greater than the ratio set
forth below at any time during the time periods set forth below:
4 FIRST AMENDMENT
<PAGE> 5
<TABLE>
<CAPTION>
MAXIMUM CAPITALIZATION
PERIOD RATIO
------------------------------------- --------------------------
<S> <C>
I. 9/21/00 through 3/30/01* 45%
------------------------------------- --------------------------
II. 3/31/01 through 9/29/01* 40%
------------------------------------- --------------------------
III. 9/30/01 and thereafter 35%
------------------------------------- --------------------------
</TABLE>
* assuming that Borrower has not made Pricing/Capitalization Ratio
Election pursuant to SECTION 10.13(b)
(b) (i) Notwithstanding the foregoing, if, at any time during Periods I
and II above the Capitalization Ratio is 35% or lower, Borrower may make an
election (a "PRICING/CAPITALIZATION RATIO ELECTION") in accordance with the
requirements of this SECTION 10.13(b). From and after the effective date of the
Pricing/Capitalization Ratio Election, Borrower and Intermediate Partnership
(unconsolidated with other Subsidiaries) shall never permit the Capitalization
Ratio to be greater than 35%. From and after the effective date of the
Pricing/Capitalization Ratio Election, the Primary Pricing Grid shall apply.
(ii) Borrower may make the Pricing/Capitalization Ratio Election by
delivering written notice to the Administrative Agent (a) stating that Borrower
is making the "Pricing/Capitalization Ratio Election" pursuant to SECTION
10.13(b) of the Credit Agreement, and (b) specifying the effective date of such
election (which must be not sooner than the fifth Business Day following the
date of delivery of such election). Together with such notice Borrower shall
deliver a certificate of a Responsible Officer setting forth the Capitalization
Ratio and supporting detail. A Pricing/Capitalization Ratio Election (x) must be
given not less than five (5) Business Days before the specified effective date,
(y) may be made only once, and (z) shall be irrevocable.
(iii) If not earlier made, Borrower shall be deemed to have made a
Pricing/Capitalization Ratio Election effective September 30, 2001, provided
that on such date the Capitalization Ratio shall be 35% or lower, as required by
SECTION 10.13(a).
5 FIRST AMENDMENT
<PAGE> 6
1.5 SCHEDULE 8.3. SCHEDULE 8.3 is hereby amended by adding the
following:
Subsidiaries of NBP Energy Pipelines, L.L.C.
<TABLE>
<CAPTION>
Name of Subsidiary Percentage Owned
------------------ ----------------
<S> <C>
ECT Powder River, LLC, a Delaware 100%
limited liability company
ECT Wind River, LLC, a Delaware limited 100%
liability company
Enron Midstream Services, L.L.C., a 100%
Delaware limited liability company
</TABLE>
PARAGRAPH 2 EFFECTIVE DATE. Notwithstanding any contrary provision, this
Amendment is not effective until the date (the "EFFECTIVE DATE") upon which the
following conditions have been satisfied:
(a) The Administrative Agent shall have received counterparts of this
Amendment, executed by Borrower, Guarantor and the Required Lenders.
(b) The Administrative Agent shall have received a certificate executed
by a Responsible Officer of Borrower stating that (1) there has not occurred a
material adverse change since December 31, 1999 in the business, assets,
liabilities (actual or contingent), operations or condition (financial or
otherwise) of the Borrower and its Subsidiaries taken as a whole or in the facts
and information regarding such entities as represented to date, (2) the Enron
North America Purchase (as defined in this Amendment) is occurring on the
Effective Date of this Amendment, and (3) no actions by, or in respect of, or
filing with, any Governmental Authority are required as a condition to the
consummation of the Enron North America Purchase, except such actions and
filings as have been taken or made.
(c) Borrower shall have paid all fees required to be paid to the
Administrative Agent for its account and for the account of the Lenders
executing this Amendment.
PARAGRAPH 3 ACKNOWLEDGMENT AND RATIFICATION. As a material inducement to
Administrative Agent and the Lenders to execute and deliver this Amendment,
Borrower and Guarantor each (a) consent to the agreements in this Amendment and
(b) agree and acknowledge that the execution, delivery, and performance of this
Amendment shall in no way release, diminish, impair, reduce, or otherwise affect
the respective obligations of Borrower or Guarantor under the Loan Documents to
which it is a party, which Loan Documents shall remain in full force and effect,
and all guaranties and Rights thereunder are hereby ratified and confirmed.
PARAGRAPH 4 REPRESENTATIONS. As a material inducement to Lenders to execute and
deliver this Amendment, Borrower and Guarantor each represent and warrant to
Lenders (with the knowledge and intent that Lenders are relying upon the same in
entering into this Amendment) that as of the Effective Date of this Amendment
and as of the date of execution of this Amendment, (a) all representations and
warranties in the Loan Documents are true and correct in all material respects
as though made on the date hereof, except to the extent that any of them speak
to a different specific date, and (b) no Potential Default or Default exists.
PARAGRAPH 5 EXPENSES. Borrower shall pay all costs, fees, and expenses paid or
incurred by Administrative Agent incident to this Amendment, including, without
limitation, the reasonable fees and
6 FIRST AMENDMENT
<PAGE> 7
expenses of Administrative Agent's counsel in connection with the negotiation,
preparation, delivery, and execution of this Amendment and any related
documents.
D. PARAGRAPH 6 MISCELLANEOUS. This Amendment is executed in replacement
and substitution for the Prior First Amendment, and the Prior First Amendment is
hereby superceded and replaced in its entirety. This Amendment is a "Loan
Document" referred to in the Credit Agreement. The provisions relating to Loan
Documents in Section 14 of the Credit Agreement are incorporated in this
Amendment by reference. Unless stated otherwise (a) the singular number includes
the plural and vice versa and words of any gender include each other gender, in
each case, as appropriate, (b) headings and captions may not be construed in
interpreting provisions, (c) this Amendment must be construed, and its
performance enforced, under New York law, (d) if any part of this Amendment is
for any reason found to be unenforceable, all other portions of it nevertheless
remain enforceable, and (e) this Amendment may be executed in any number of
counterparts with the same effect as if all signatories had signed the same
document, and all of those counterparts must be construed together to constitute
the same document.
PARAGRAPH 7 ENTIRE AGREEMENT. THIS AMENDMENT REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES ABOUT THE SUBJECT MATTER OF THIS AMENDMENT AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
PARAGRAPH 8 PARTIES. This Amendment binds and inures to the benefit of Borrower,
Guarantor, Administrative Agent, Lenders, and their respective successors and
assigns.
The parties hereto have executed this Amendment in multiple
counterparts to be effective as of the Effective Date.
REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES TO FOLLOW.
7 FIRST AMENDMENT
<PAGE> 8
NORTHERN BORDER PARTNERS, L.P.
By: /s/ Jerry L. Peters
--------------------------------
Name: Jerry L. Peters
Title: Chief Financial &
Accounting Officer
FIRST AMENDMENT
<PAGE> 9
NORTHERN BORDER INTERMEDIATE
LIMITED PARTNERSHIP, Guarantor
By: /s/ Jerry L. Peters
--------------------------------
Name: Jerry L. Peters
Title: Chief Financial &
Accounting Officer
FIRST AMENDMENT
<PAGE> 10
BANK OF AMERICA, N.A.,
as Administrative Agent and as a Lender
By: /s/ Denise A. Smith
---------------------------------
Denise A. Smith
Managing Director
FIRST AMENDMENT
<PAGE> 11
SUNTRUST BANK
By: /s/ Steven J. Newby
---------------------------------
Name: Steven J. Newby
Title: Vice President
FIRST AMENDMENT
<PAGE> 12
BANK ONE, NA
By: /s/ Helen A. Carr
---------------------------------
Name: Helen A. Carr
Title: First Vice President
FIRST AMENDMENT
<PAGE> 13
BANK OF MONTREAL
By: /s/ J. R. Whitmore
---------------------------------
Name: J. R. Whitmore
Title: Director
FIRST AMENDMENT
<PAGE> 14
ROYAL BANK OF CANADA
By: /s/ David A. McCluskey
---------------------------------
Name: David A. McCluskey
Title: Manager
FIRST AMENDMENT
<PAGE> 15
THE FUJI BANK, LIMITED
By: /s/ Jacques Azagury
---------------------------------
Name: Jacques Azagury
Title: Senior Vice President
& Manager
FIRST AMENDMENT
<PAGE> 16
FIRST NATIONAL BANK OF OMAHA
By: /s/ Jeff Sims
---------------------------------
Name: Jeff Sims
Title: Vice President
FIRST AMENDMENT
