Exhibit 10.2
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO SECOND
AMENDED AND RESTATED CREDIT AGREEMENT (this “
Amendment ”) is entered into effective as of
March [ ], 2009 (the “
Amendment Effective Date ”), among ENBRIDGE
ENERGY PARTNERS, L.P., a Delaware limited partnership, as borrower
(the “ Borrower ”), the Lenders named on
the signature pages hereto, BANK OF AMERICA, N.A., as
administrative agent (in such capacity, the “
Administrative Agent ”) and as Swing Line
Lender (in such capacity, the “ Swing Line
Lender ”), and BANK OF AMERICA, N.A., and WACHOVIA
BANK, NATIONAL ASSOCIATION, as L/C Issuers (each an “
L/C Issuer ”, and together, the “
L/C Issuers ”).
WHEREAS, the Borrower, the Lenders,
the Administrative Agent, and the other agents named therein are
parties to that certain Second Amended and Restated Credit
Agreement dated as of April 4, 2007 (as amended from time to
time, the “ Credit Agreement
”).
WHEREAS, the Borrower and the
undersigned Lenders have agreed to amend the Credit Agreement as
set forth in Section 2 below.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1.
Definitions . Unless otherwise
defined in this Amendment, terms used in this Amendment which are
defined in the Credit Agreement shall have the meanings assigned to
such terms in the Credit Agreement. The interpretive provisions set
forth in Section 1.02 of the Credit Agreement
shall apply to this Amendment.
SECTION 2.
Amendments to the Credit Agreement .
(a)
Section 2.05(a) of the Credit Agreement (Swing
Line Loans) is hereby amended by replacing the period at the end of
the first sentence thereof with the following language: “and
provided, further, that the Swing Line Lender shall be under no
obligation to make Swing Line Loans if any Lender at such time is a
Defaulting Lender, (i) except pursuant to
Section 2.05(g), which provides for, at the time such Swing
Line Loan is made, cash collateral for the Swing Line Lender in the
amount and on the terms required by Section 2.05(g) and such
other administrative rules and regulations from time to time agreed
upon by the Swing Line Lender and the Borrower, or (ii) unless
the Borrower has requested and made other arrangements satisfactory
to the Swing Line Lender to eliminate the Swing Line Lender’s
risk with respect to such Lender.”
(b)
Section 2.05 of the Credit Agreement (Swing Line
Loans) is hereby amended by adding a new Section 2.05(g) to
read as follows:
“(g)
Cash Collateral if There is a Defaulting Lender . If at the
time the Borrower requests a Swing Line Loan any Lender is a
Defaulting Lender, then, except as otherwise provided in
Section 2.05(a)(ii), disbursement to the Borrower of
such requested Swing Line Loan shall be as follows: (i) an
amount equal to such Defaulting Lenders’ Pro Rata Share of
such requested Swing Line Loan (or, in lieu thereof, such other
amount as shall be agreed by the Company and the Swing Line Lender)
shall be deemed disbursed to the Borrower pursuant to the
Borrower’s contemporaneous instruction to the Swing Line
Lender to deposit such amount as cash collateral into a cash
collateral account in the Borrower’s name on deposit with
(and, pursuant to the cash collateral agreement, under the control
of) the Swing Line Lender, and (ii) the remainder shall be
credited to the Borrower’s account as provided in
Section 2.05(b) . Such
amount of cash collateral for each
Swing Line Loan shall remain on deposit until the earlier to occur
of (i) such Swing Line Loan has been repaid in full or
refinanced in full in accordance with
Section 2.05(c)(i) or all Lenders have funded their
risk participations in such Swing Line Loan in accordance with
Section 2.05(c) , and (ii) such earlier time, if
any, as shall be agreed by the Swing Line Lender; provided,
however, that the Swing Line Lender shall be under no obligation to
release any cash collateral deposited in accordance with this
Section 2.05(g) at any time that a Default or Event of
Default exists. Such cash collateral account shall be established
and maintained pursuant to a cash collateral agreement satisfactory
to the Borrower and the Swing Line Lender. For the avoidance of
doubt, the collateral provided for in this Section
2.05(g) shall not be subject to the sharing provisions set
forth in Section 2.14 .”
(c)
Section 7.01(a) of the Credit Agreement (Liens)
is hereby amended in its entirety to read as follows: “(a)
Liens pursuant to any Loan Document or securing any Obligation in
respect of Letters of Credit or Swing Line Loans as contemplated by
Section 2.04(a)(ii)(F) or Section 2.05(a)
or;”
(d)
Section 10.16(a) of the Credit Agreement
(Removal and Replacement of Lenders) is hereby amended by replacing
the language “Under any circumstances set forth herein
providing that the Borrower shall have the right to remove or
replace a Lender as a party to this Agreement,” with the
following language:
“If
(1) (A) such Lender or the Person that controls such
Lender has been deemed insolvent or has become the subject of a
bankruptcy, receivership or insolvency proceeding, and
(B) such Lender has failed to fund any portion of the
Committed Loans, participations in L/C Obligations, or
participations in Swing Line Loans required to be funded by it
hereunder within one Business Day following the date required to be
funded by it hereunder, unless cured; or (2) under any other
circumstances set forth herein providing that the Borrower shall
have the right to remove or replace a Lender as a party to this
Agreement,”
SECTION 3.
Conditions of Effectiveness . The
amendment to the Credit Agreement set forth in
Section 2 of this Amendment shall be effective
on the Amendment Effective Date, provided that the Administrative
Agent shall have received the following:
(a) a
counterpart of this Amendment executed by the Administrative Agent,
the Borrower, the L/C Issuers and the Lenders named on the
signature pages of this Agreement (which may be by telecopy or
other electronic transmission); and
(b) such
certificates of resolution or other action, incumbency certificates
and/or other certificate of the appropriate officers of the
Borrower and the General Partner as the Administrative Agent may
require evidencing the identity, authority and capacity of the
Responsible Officer signing this Amendment.
SECTION 4.
Acknowledgment and Ratification . As
a material inducement to the Administrative Agent and the Lenders
to execute and deliver this Amendment, the Borrower agrees and
acknowledges that the execution, delivery, and performance of this
Amendment shall, except as expressly provided herein, in no way
release, diminish, impair, reduce, or otherwise affect the
Obligations of the Borrower under the Loan Documents, which Loan
Documents shall remain in full force and effect.
SECTION 5.
Borrower’s Representations and Warranties.
As a material inducement to the
Administrative Agent and the Lenders to execute and deliver this
Amendment, the Borrower represents and warrants to the Lenders
(with the knowledge and intent that the Lenders are relying upon
the same in entering into this Amendment) that as of the Amendment
Effective Date and as of the date of its execution of this
Amendment, that:
(a) This
Amendment has been duly authorized, executed and delivered by the
Borrower and the Credit Agreement as amended hereby constitutes its
legal, valid and binding obligations enforceable against it in
accordance with their respective terms (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and similar laws affecting creditors’
rights generally and to general principles of equity).
2
(b) There
has been no event or circumstance since December 31, 2008
which has had or could reasonably be expected to have a Material
Adverse Effect.
(c) The
representations and warranties set forth in Article V of the
Credit Agreement are true and correct in all material respects on
and as of the Amendment Effective Date, after giving effect to this
Amendment, except to the extent such representations and warranties
relate solely to an earlier date, in which case, they shall be true
and correct as of such date.
(d) As
of the date hereof, at the time of and after giving effect to this
Amendment, no Default or Event of Default has occurred and is
continuing.
(e) No
approval, consent, exemption, authorization or other action by, or
notice to, or filing with, any Governmental Authority is required
to be obtained or made by the Borrower by any material statutory
law or regulation applicable to it as a condition to the execution,
delivery or performance by, or enforcement against, the Borrower of
this Amendment. The execution, delivery and performance by the
Borrower of this Amendment has been duly authorized by all
necessary corporate or other organizational action, and does not
and will not (i) violate the terms of any of the
Borrower’s Organization Documents, (ii) result in any
breach of, constitute a default under, or require pursuant to the
express provisions thereof, the creation of any consensual Lien on
the properties of the Borrower under, any Contractual Obligation to
which the Borrower is a party or any order, injunction, writ or
decree of any Governmental Authority to which the Borrower or its
property is subject, or (iii) violate any Law, in each case
with respect to the preceding clauses (i) through (iii), which
would reasonably be expected to have a Material Adverse
Effect.
SECTION 6.
Effect of Amendment .
(a) This
Amendment (i) except as expressly provided herein, shall not
be deemed to be a consent to the modification or waiver of any
other term or condition of the Credit Agreement or of any of the
instruments or agreements referred to therein and (ii) shall
not prejudice any right or rights which the Administrative Agent or
the Lenders may now have under or in connection with the Credit
Agreement, as amended by this Amendment. Except as otherwise
expressly provided by this Amendment, all of the terms,
