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1996 FORM 10-K
EXHIBIT 10.16
FIRST AMENDMENT TO
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (as the same may be amended, modified, or supplemented from time to
time, this "Amendment") is entered into and effective as of the 6th day of
September, 1996 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.
WITNESETH:
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 the same may be amended,
modified, or supplemented from time to time, the "Credit Agreement"); and
WHEREAS, the Credit Agreement has been executed by the parties thereto
in amendment and restatement of the Existing Credit Agreement; and
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WHEREAS, the Existing Credit Agreement provides for "Revolving Loans"
(as defined in the Existing Credit Agreement), and for the conversion of such
Revolving Loans to term loans; and
WHEREAS, the Credit Agreement provides for, inter alia, the continuance
of such revolving facility and Revolving Loans; and
WHEREAS, the General Partner, the Borrowers, the Banks, and the Agent
have agreed, and hereby agree, to amend the Credit Agreement to the extent
necessary to provide for the conversion of one or more Loans into one or more
term loans (each a "Term Loan," and collectively, the "Term Loans") such that
the credit facility under the Credit Agreement shall, during the term of this
Amendment, provide for a revolving credit and term loan facility as does the
Existing Credit Agreement.
NOW, THEREFORE, the General Partner, the Borrowers, the Banks, and the
Agent hereby agree as follows:
1. 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.
2. In accordance with Section 2.01 of the Credit Agreement, the Agent
has the right to forward to the Borrowers a Notice of Non-Continuation
specifying a Potential Loan Maturity Date, and the Borrowers have the right to
replace any Electing Banks. In the event that after receipt of a Notice of
Non-Continuation, the Agent and each Electing Bank do not, prior to the
Applicable Anniversary Date, receive a Notice of Replacement as contemplated by
said Section 2.01 of the Credit Agreement, then, notwithstanding anything
contained in said Section 2.01 of the Credit Agreement or elsewhere to the
contrary, all Loans then outstanding shall, without any further action of any
kind, be automatically converted to Term Loans to the respective Borrower or
Borrowers of
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such Loans on such Applicable Anniversary Date upon the receipt of a
certificate from each such Borrower certifying that as of such date of
conversion (a) No Event of Default has occurred and is continuing, (ii) the
representation and warranty contained in Section 5.04 of the Credit Agreement
is true and correct, and (c) with respect to any Term Loan to be secured by
Qualifying Securities, the value of the Qualifying Securities in which the
Collateral Agent will have a first perfected security interest
contemporaneously with the conversion of such Loan or Loans to a Term Loan or
Term Loans shall be no less than the Required Collateral Amount for each such
Term Loan.
3. Additionally, each Borrower shall have the option, on any one
or more Business Day(s) to convert all or a portion equal to not less than
$25,000,000 of the outstanding principal amount of the Loans to a Term Loan or
Term Loans by such Borrower's providing the Agent (a) (i) at least two
Business Days' prior notice in the case of a conversion to Term Loans bearing
interest at the LIBOR Rate or the CD Rate, or (ii) notice on the same day,
in the case of a conversion to Prime Rate Loans and (b) a certificate from
such Borrower certifying that as of such date of conversion (i) No Event of
Default has occurred and is continuing, (ii) the representation and warranty
contained in Section 5.04 of the Credit Agreement is true and correct, and
(iii) with respect to any Term Loan to be secured by Qualifying Securities,
the value of the Qualifying Securities in which the Collateral Agent will have
a first perfected security interest contemporaneously with the conversion of
such Loan or Loans to a Term Loan or Term Loans shall be no less than the
Required Collateral Amount for each such Term Loan.
4. It is expressly agreed and understood that the Total Loan
Commitment shall not be reduced by the principal amount of the Loan or Loans
converted to a Term Loan or Term Loans pursuant to this Amendment.
5. The Term Loans shall be evidenced by the Existing Notes, shall
be deemed to be "Loans" under and governed by the Credit Agreement as amended
hereby, and shall constitute Funded Debt, the principal of which is payable
quarterly pursuant to Paragraph 7 hereof.
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6. Accrued interest on the Term Loans shall be due and payable
thereon, without duplication, on each of the following dates: (a) on the
maturity thereof; (b) on the date of any payment or prepayment, in whole or in
part, of the principal thereof; and (c) on each "Interest Payment Date"
(hereinafter defined). For purposes hereof, the terms "Interest Payment Date"
and "Interest Period" shall have the meanings, respectively, assigned to them
in the Credit Agreement, except that references therein to CD Rate Loan, LIBOR
Rate Loan and Prime Rate Loan shall be deemed to be references to Term Loans
bearing interest at the CD Rate, LIBOR Rate and Prime Rate, respectively.
7. Mandatory prepayments of the principal amount of each Term Loan
shall be due and payable in respect of such Term Loan in equal quarterly
installments on the last day of each calendar quarter during the "Term"
(hereinafter defined) of such Term Loan, commencing on the last day of the
first quarter (or part thereof) during the Term applicable to each such Term
Loan. "Term" shall mean, as to each Term Loan, that period beginning on the
date of conversion to such Term Loan pursuant to Paragraphs 2 or 3 of this
Amendment and ending (a) if on the date of conversion to a Term Loan, the Loan
Maturity Date has not been established pursuant to the Credit Agreement, on the
first Potential Loan Maturity Date which, pursuant to Section 2.01 of the
Credit Agreement, could be, as of such date of determination, specified by the
Agent to the Borrowers in a Notice of Non-Continuation or (b) if on the date of
such conversion, the Loan Maturity Date has been so established, the Loan
Maturity Date. The foregoing notwithstanding, to the extent the Borrowers
convert any one or more of the Term Loans to Loans in accordance with Paragraph
8 hereinbelow, such Loans shall thereafter be subject to repayment in
accordance with the Note or Notes evidencing the same.
8. Each Borrower shall have the right at any time prior to the
termination of this Amendment to convert the outstanding principal amount of
any Term Loan owing by such Borrower to a Loan or Loans (which Loans will be
governed by the Credit Agreement) by such Borrower's (i) providing the Agent
(a) at least two Business Days' prior notice in the case of a conversion to
Loans bearing interest at the LIBOR Rate or the CD Rate, or (b) notice on the
same
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day, in the case of a conversion to Prime Rate Loans, in the form of
Exhibit "C" to the Credit Agreement.
9. Each Borrower shall have the right, at any time and from
time to time, at its option, to prepay any Term Loan in whole or in part
from time to time, without premium or penalty (except for breakage costs
to the extent set forth in Section 3.04(c) of the Credit Agreement). Any
such optional prepayments shall be applied to principal installments in
their inverse order of maturity and any payment or prepayment on any Term
Loan shall reduce (a) the Total Loan Commitment by the amount of such
payment or prepayment and (b) each Bank's Loan Commitment by an amount
equal to such Bank's Participation Percentage multiplied by the amount of
such payment or prepayment. Amounts so paid or prepaid may not be
reborrowed. In connection with the foregoing, the parties hereto
acknowledge that a conversion of Term Loans to Loans shall not constitute
a prepayment or payment thereof but rather a continuation thereof as a
Loan or Loans.
10. The parties hereto hereby agree that any automatic reduction
in the Total Loan Commitment pursuant to Section 7.05 of the Credit
Agreement shall be without duplication of any reduction in the Total Loan
Commitment as a result of any repayments of Loans under the Credit
Agreement.
11. Interest shall cease to accrue on all amounts prepaid,
whether pursuant to Paragraphs 7 or 9 hereof.
12. All principal prepayments (whether pursuant to Paragraphs 7
or 9 hereof) of the Term Loans shall be applied pro rata to the Term Loans
owing by such Borrower to all Banks.
13. At no time shall the principal amount of the Term Loans and
the Loans then outstanding exceed, in the aggregate, the amount of the
Total Loan Commitment as such Total Loan Commitment may be reduced
pursuant to the terms hereof and of the Credit Agreement.
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14. In connection with this Amendment, the parties hereto
acknowledge and agree that the Loans and the Term Loans, while representing,
respectively, revolving loans and term loans, evidence but one and the same
indebtedness advanced by the Banks to the Borrowers pursuant to the Existing
Credit Agreement and continued pursuant to the Credit Agreement. In
connection with the foregoing, the parties hereto expressly acknowledge and
agree that notwithstanding anything contained herein or elsewhere to the
contrary or seemingly to the contrary, neither the conversion of any one or
more Loans into one or more Term Loans nor the conversion of one or more Term
Loans into Loans pursuant to this Amendment shall constitute repayment of the
indebtedness evidenced thereby.
15. This Amendment is an instrument furnished in connection with
the transactions contemplated by the Credit Agreement. 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.
16. This Amendment shall terminate and be of no further force and
effect (a) upon the termination of the Credit Agreement, or (b) if earlier,
upon written notice by the Borrowers to the Agent; it being expressly agreed
and understood that termination of this Amendment pursuant to foregoing
clause (b) shall in not, in any way, affect the term or effectiveness, or
constitute a termination, of the Credit Agreement. Any reduction in the
Total Loan Commitment pursuant to the terms of this Amendment shall continue
in effect notwithstanding termination of this Amendment.
17. 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.
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18. 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.
19. 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.
20. 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.
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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: Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
----------------------
Title: Secretary
---------------------
By: S. Q. DeVinck
----------------------------
Name: S. Q. DeVinck
----------------------
Title: Chief Accountant
---------------------
LAKEHEAD PIPE LINE PARTNERS, L.P.
By: Lakehead Pipe Line Company, Inc.,
General Partner
By: Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
----------------------
Title: Secretary
---------------------
By: S. Q. DeVinck
----------------------------
Name: S. Q. DeVinck
----------------------
Title: Chief Accountant
---------------------
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LAKEHEAD SERVICES,
LIMITED PARTNERSHIP
By: Lakehead Pipe Line Partners, L.P., a
Delaware Limited Partnership
By: Lakehead Pipe Line Company, Inc.,
General Partner
By: Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
----------------------
Title: Secretary
---------------------
By: S. Q. DeVinck
----------------------------
Name: S. Q. DeVinck
----------------------
Title: Chief Accountant
---------------------
LAKEHEAD PIPE LINE COMPANY
LIMITED PARTNERSHIP
By: Lakehead Pipe Line Company, Inc.,
General Partner
By: Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
------------------------
Title: Secretary
-----------------------
By: S. Q. DeVinck
------------------------------
Name: S. Q. DeVinck
------------------------
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; J. Xxxxxxx Xxxxxx
------------------------------
Name: J. Xxxxxxx Xxxxxx
----------------------------
Title: Director
--------------------------
THE TORONTO-DOMINION BANK, a Canadian
chartered bank
By:
-----------------------------
Name:
----------------------------
Title:
--------------------------
CANADIAN IMPERIAL BANK OF COMMERCE,
a Canadian chartered bank
By:
-----------------------------
Name:
----------------------------
Title:
--------------------------
ABN AMRO BANK, N.V., CAYMAN ISLANDS
BRANCH
By:
-----------------------------
Name:
----------------------------
Title:
--------------------------
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BANK OF MONTREAL, a Canadian-chartered
bank in its individual cacity as a Bank and as
Agent
By:
-----------------------------
Name:
--------------------------
Title:
--------------------------
THE TORONTO-DOMINION BANK, a Canadian
chartered bank
By: Xxxx Xxxxxxx
-----------------------------
Name: XXXX XXXXXXX
---------------------------
Title: MGR. CR ADMIN.
--------------------------
CANADIAN IMPERIAL BANK OF COMMERCE,
a Canadian chartered bank
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
ABN AMRO BANK, N.V., CAYMAN ISLANDS
BRANCH
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
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BANK OF MONTREAL, a Canadian-chartered
bank in its individual capacity as a Bank and as
Agent
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
THE TORONTO-DOMINION BANK, a Canadian
chartered bank
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
CANADIAN IMPERIAL BANK OF COMMERCE,
a Canadian chartered bank
By: Xxxx X. Xxxxxxx M X.X. Xxxxxx
------------------------------------------
Name: XXXX X. XXXXXXX M.A.G. Xxxxxx
-----------------------------------------
Title:AUTHORIZED SIGNATORY AUTHORIZED SIGNATORY
-----------------------------------------
ABN AMRO BANK, N.V., a [Netherlands] bank
By:
-------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
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BANK OF MONTREAL, a Canadian-chartered
bank in its individual capacity as a Bank and as
Agent
By:
-----------------------------
Name:
--------------------------
Title:
--------------------------
THE TORONTO-DOMINION BANK, a Canadian
chartered bank
By:
-----------------------------
Name:
--------------------------
Title:
--------------------------
CANADIAN IMPERIAL BANK OF COMMERCE,
a Canadian chartered bank
By:
-----------------------------
Name:
--------------------------
Title:
--------------------------
ABN AMRO BANK, N.V., CAYMAN ISLANDS
BRANCH
By: X.X. Xxxx
-----------------------------
Name: X.X. XXXX
---------------------------
Title: VICE PRESIDENT, CREDIT
--------------------------
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