SEVENTH AMENDING AGREEMENT
SEVENTH AMENDING AGREEMENT
THIS AGREEMENT dated as of November 7, 2019.
AMONG:
ENERPLUS CORPORATION, a corporation subsisting under the laws of the Province of Alberta, as borrower (hereinafter referred to as the “Borrower”),
OF THE FIRST PART
and
CANADIAN IMPERIAL BANK OF COMMERCE, a Canadian chartered bank, as administrative agent of the Lenders (hereinafter referred to as the “Agent”),
OF THE SECOND PART
and
EACH PERSON NAMED ON THE SIGNATURE PAGES HEREOF in their capacity as a Lender (collectively, the “Lenders”),
OF THE THIRD PART
WHEREAS the parties hereto entered into the Credit Agreement;
AND WHEREAS the parties hereto have agreed to amend and supplement certain provisions of the Credit Agreement as set out herein;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby conclusively acknowledged by each of the parties hereto, the parties hereto covenant and agree as follows:
1. INTERPRETATION
1.1 In this Agreement and the recitals hereto, unless something in the subject matter or context is inconsistent therewith:
“Agreement” means this seventh amending agreement, as amended, modified, supplemented or restated from time to time and includes, for certainty, the Confirmation of Guarantee attached hereto;
“Amended Credit Agreement” means the Credit Agreement as amended and supplemented by this Agreement, and as the same may be further amended, modified, supplemented or restated from time to time;
“Credit Agreement” means the amended and restated credit agreement dated as of October 31, 2012 between the Borrower, the Agent and the Lenders, as amended by a first amending agreement
dated as of November 8, 2013, a second amending agreement dated as of May 6, 2014, a third amending agreement dated as of November 7, 2014, a fourth amending agreement dated as of November 6, 2015, a fifth amending agreement dated as of November 4, 2016 and a sixth amending agreement dated as of November 8, 2018; and
“Effective Date” means the date on which all of the conditions precedent in Section 5.1 of this Agreement have been satisfied or waived by the Lenders.
1.2 Capitalized terms used herein without express definition shall have the same meanings herein as are ascribed thereto in the Credit Agreement.
1.3 The division of this Agreement into Sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The terms “this Agreement”, “hereof”, “hereunder” and similar expressions refer to this Agreement and not to any particular Section or other portion hereof and include any agreements supplemental hereto. Unless expressly indicated otherwise, all references to “Section” or “Sections” are intended to refer to a Section or Sections of the Credit Agreement.
2. AMENDMENTS TO DEFINITIONS
2.1 Effective as of the Effective Date, the Borrower, the Agent and each of the Lenders agree that Section 1.1 of the Credit Agreement is amended as follows:
(a) the definition of “Available Cash” is amended by replacing the reference to “the Equivalent Amount in Canadian Dollars” with “the Equivalent Amount in U.S. Dollars”;
(b) the definition of “Canadian Dollars” or “Canadian $” or “Cdn. $” or “$” is amended by deleting the reference to “or “$””;
(c) the definition “Commitment Amount” is amended by replacing the reference to “, initially, $800,000,000” with “U.S. $600,000,000”;
(d) the definition of “Consolidated EBITDA” is replaced with the following:
““Consolidated EBITDA” means, on a consolidated basis for any period and without duplication, the aggregate of the net income of the Borrower for any such period determined in accordance with GAAP,
(a) plus, to the extent deducted in the determination of such net income, the sum of:
(i) depletion, amortization, accretion and depreciation (excluding any depreciation, depletion or amortization expense attributable to leases which are excluded from the determination of Consolidated Senior Debt and Consolidated Senior Net Debt);
(ii) interest expense (excluding any interest expense attributable to leases which are excluded from the determination of Consolidated Senior Debt and Consolidated Senior Net Debt);
(iii) the all-in costs of funds of any accounts receivable securitization program;
(iv) all provisions for any taxes;
(v) all non-cash amounts;
(vi) any losses resulting from extraordinary or nonrecurring items; and
(vii) net losses attributable to minority interests; and
(b) minus, to the extent added in the determination of such net income, the sum of:
(i) all non-cash amounts;
(ii) gains resulting from any extraordinary or nonrecurring items;
(iii) all amounts attributable to any Non-Recourse Assets except to the extent distributed to any Enerplus Party free and clear of any claim from the lender of the associated Non-Recourse Debt; and
(iv) net income attributable to minority interests.
Consolidated EBITDA will be adjusted for any acquisition or disposition (the net proceeds of which are greater than U.S. $37,500,000 or the Equivalent Amount thereof) made within the applicable period, as if that acquisition or disposition had been made at the beginning of such period, with all such adjustments to be made in a manner consistent with the foregoing and supported by such back-up information as may be reasonably requested by the Lenders.”;
(e) the definition “Consolidated Senior Net Debt” is replaced with the following:
““Consolidated Senior Net Debt” means Consolidated Senior Debt less the amount of Available Cash.”;
(f) the definition “Consolidated Tangible Assets” is amended by replacing the reference to “Cdn.$2,242,070,000” with “U.S. $1,681,552,500”;
(g) the definition “Convertible Debentures” is amended by replacing the reference to “Cdn.$20,000,000 (or the equivalent amount in any other currency)” in paragraph (A) with “U.S. $15,000,000 (or the Equivalent Amount in any other currency)”;
(h) the definition “Shareholders’ Equity” is amended by replacing the reference to “Cdn.$1,098,314,000” with “U.S. $823,735,500 ”;
(i) the definition “Swing Line Loan Limit” is amended by replacing the reference to “Cdn. $80,000,000, or the Equivalent Amount thereof in U.S. Dollars “ with “U.S. $60,000,000, or the Equivalent Amount thereof in Canadian Dollars ”;
(j) the definition of “Maturity Date” is amended by replacing “October 31, 2021” with “October 31, 2023”;
(k) the definition “Threshold Amount” is amended by replacing the reference to “$75,000,000” with “U.S. $60,000,000”; and
(l) the definition of “U.S. Dollars” or “U.S. $” is amended by adding the reference to “or “$” after the reference to “or U.S. $””.
3. OTHER AMENDMENTS TO CREDIT AGREEMENT
3.1 Effective as of the Effective Date, the Borrower, the Agent and each of the Lenders agree that the Credit Agreement is further amended as follows:
(a) Section 1.6 of the Credit Agreement is amended by replacing the reference to “Canadian Dollars” with “U.S. Dollars”;
(b) Section 3.1 of the Credit Agreement is amended by replacing the reference to “in Canadian Dollars or the Equivalent Amount thereof in U.S. Dollars” with “in U.S. Dollars or the Equivalent Amount thereof in Canadian Dollars”;
(c) Section 3.2(b) of the Credit Agreement is amended by replacing the reference to “Cdn. $1,350,000,000” with “U.S. $1,000,000,000”;
(d) Section 3.2(d) of the Credit Agreement is amended by replacing the reference to “Cdn. $20,000,000” with “U.S. $15,000,000”;
(e) Section 3.3(a) of the Credit Agreement is amended by replacing the reference to “three years” with “four years”;
(f) Section 3.9(k) of the Credit Agreement is amended by replacing the references to “$1,000,000” with “U.S. $1,000,000” and “Cdn.$80,000,000” with “U.S. $60,000,000”;
(g) Sections 4.2(g), 6.7, 11.1(i), 21.18(g) and 21.18(g)(i) of the Credit Agreement are amended by replacing each reference to “the Equivalent Amount in Canadian Dollars” with “the Equivalent Amount in U.S. Dollars”;
(h) Section 8.5 of the Credit Agreement is amended by replacing the references to “Canadian Dollars” with “U.S. Dollars” and “Canadian Prime Rate Loans” with “U.S. Base Rate Loans”;
(i) Section 11.1(a)(i) of the Credit Agreement is amended by replacing the reference to “Cdn. $100,000,000” with “U.S. $75,000,000” and by replacing each reference to “the Equivalent Amount in Canadian Dollars” with “the Equivalent Amount in U.S. Dollars”;
(j) Section 11.1(a)(ii) of the Credit Agreement is amended by replacing the reference to “Cdn. $20,000,000” with “U.S. $20,000,000” and by replacing the reference to “the Equivalent Amount in Canadian Dollars” with “the Equivalent Amount in U.S. Dollars”;
(k) Section 14.4(d) of the Credit Agreement is amended by replacing the reference to “Cdn. $5,000,000” with “U.S. $3,750,000”;
(l) the last paragraph of Section 14.4 of the Credit Agreement is amended by replacing the reference to “Cdn. $1,000,000,000 or the equivalent in U.S. Dollars” with “U.S. $1,000,000,000 or the Equivalent Amount in Canadian Dollars”;
(m) Section 20.2 of the Credit Agreement is amended by replacing the each reference to “$5,000,000” with “U.S. $5,000,000” and the reference to “$3,500” with “U.S. $3,500”;
(n) Sections 22.9(a)(i) and (ii) are amended by replacing each reference to “Canadian Prime Rate” with “Canadian Prime Rate or U.S. Base Rate, as applicable for the currency in which such amount is payable, in each case,”;
(o) Schedule A to the Credit Agreement is deleted and replaced with Exhibit A hereto; and
(p) Schedule D of the Credit Agreement is amended by replacing each reference to “Cdn. $[·]” with “U.S. $[·]” in Section 2 and by replacing the reference to “Canadian Dollars” with “U.S. Dollars” in Section 4.
4. REPRESENTATIONS AND WARRANTIES
4.1 The Borrower hereby represents and warrants that as of the Effective Date:
(a) no Default or Event of Default has occurred and is continuing; and
(b) the representations and warranties contained in Article 13 of the Amended Credit Agreement (other than those made specifically as of the Amendment Date and with this Agreement being a Document and references to the Credit Agreement being deemed to be references to the Amended Credit Agreement) are true and correct.
4.2 The representations and warranties set out in this Agreement shall survive the execution and delivery of this Agreement and the making of each Advance, notwithstanding any investigations or examinations which may be made by or on behalf of the Agent, the Lenders or the Lenders’ counsel. Such representations and warranties shall survive until the Amended Credit Agreement has been terminated.
5. CONDITIONS PRECEDENT TO EFFECTIVENESS
5.1 This Agreement shall be effective on the date each of the following conditions precedent are satisfied (or waived by the Lenders hereunder):
(a) the Borrower shall deliver or cause to be delivered to the Agent an executed copy of this Agreement for each Lender; and
(b) the Agent shall have received for payment to each Lender, a fee equal to [REDACTED — COMMERCIALLY SENSITIVE INFORMATION] Basis Points on the amount of each Lender’s Individual Commitment Amount.
5.2 The conditions precedent set out in Section 5.1 above are inserted for the sole benefit of the Lenders and may be waived only by unanimous consent of the Lenders.
6. CONFIRMATION OF CREDIT AGREEMENT AND OTHER DOCUMENTS
The Credit Agreement and the other Documents to which the Borrower is a party and all covenants, terms and provisions thereof, except as expressly amended and supplemented by this Agreement, shall be and continue to be in full force and effect. The Credit Agreement as amended hereby is hereby ratified and confirmed and shall from and after the date hereof continue in full force and effect. This Agreement shall, for all purposes, be considered to be a Document.
7. FURTHER ASSURANCES
The parties hereto shall from time to time do all such further acts and things and execute and deliver all such documents as are required in order to effect the full intent of and fully perform and carry out the terms of this Agreement.
8. COUNTERPARTS
This Agreement may be executed in any number of counterparts (and by different parties hereto in different counterparts), each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic means shall be effective as delivery of a manually executed counterpart of this Agreement.
9. GOVERNING LAW
The parties agree that this Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein, without prejudice to or limitation of any other rights or remedies available under the laws of any jurisdiction where property or assets of the Borrower may be found.
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
[Signature pages follow]
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ENERPLUS CORPORATION | |
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Per: |
(signed) “Xxxx Xxxxxx Xxxxxx” |
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Name: |
Xxxx Xxxxxx Xxxxxx |
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Title: |
Senior Vice President and Chief Financial Officer |
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Per: |
(signed) “Xxxxxx Xxxxxxxx” |
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Name: |
Xxxxxx Xxxxxxxx |
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Title: |
Vice President, Finance |
[Signature Page to Seventh Amending Agreement - Enerplus Corporation]
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CANADIAN IMPERIAL BANK OF | |
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COMMERCE, as Agent, Swing Line Lender, | |
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Per: |
(signed) “Xxxxxx Xxxxxxx” |
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Name: |
Xxxxxx Xxxxxxx |
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Title: |
Managing Director |
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Per: |
(signed) “Xxxx Xxxxxxx” |
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Name: |
Xxxx Xxxxxxx |
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Title: |
Director |
[Signature Page to Seventh Amending Agreement - Enerplus Corporation]
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ROYAL BANK OF CANADA | |
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Per: |
(signed) “Xxxx Xxxxxx” |
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Name: |
Xxxx Xxxxxx |
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Title: |
Authorized Signatory |
[Signature Page to Seventh Amending Agreement - Enerplus Corporation]
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BANK OF MONTREAL | |
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Per: |
(signed) “Xxxx Xxxxx” |
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Name: |
Xxxx Xxxxx |
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Title: |
Managing Director |
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Per: |
(signed) “Xxxx Xxxxxxxx” |
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Name: |
Xxxx Xxxxxxxx |
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Title: |
Analyst |
[Signature Page to Seventh Amending Agreement - Enerplus Corporation]
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XXX XXXX XX XXXX XXXXXX | |
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Per: |
(signed) “Xxxxxxxx Xxxxxxxx” |
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Name: |
Xxxxxxxx Xxxxxxxx |
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Title: |
Director |
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Per: |
(signed) “Xxxxx Xxxxxx” |
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Name: |
Xxxxx Xxxxxx |
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Title: |
Associate Director |
[Signature Page to Seventh Amending Agreement - Enerplus Corporation]
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THE TORONTO-DOMINION BANK | |
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Per: |
(signed) “Xxxx Xxxxx” |
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Name: |
Xxxx Xxxxx |
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Title: |
Director |
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Per: |
(signed) “Xxxxxxx Xxxxxx” |
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Name: |
Xxxxxxx Xxxxxx |
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Title: |
Director |
[Signature Page to Seventh Amending Agreement - Enerplus Corporation]
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XXXXXXXX XXXX XX XXXXXX | |
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Per: |
(signed) “Xxxxx Xxxxxxx” |
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Name: |
Xxxxx Xxxxxxx |
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Title: |
Authorized Signatory |
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Per: |
(signed) “Xxxx Xxxxxxxxxx” |
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Name: |
Xxxx Xxxxxxxxxx |
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Title: |
Authorized Signatory |
[Signature Page to Seventh Amending Agreement - Enerplus Corporation]
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CITIBANK, N.A., CANADIAN BRANCH | |
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Per: |
(signed) “Xxxxx Xxxxxxx” |
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Name: |
Xxxxx Xxxxxxx |
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Title: |
Authorized Signatory |
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Per: |
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Name: |
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Title: |
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[Signature Page to Seventh Amending Agreement - Enerplus Corporation]
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XXXXX FARGO BANK, N.A., CANADIAN BRANCH | |
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Per: |
(signed) “Xxx Xxxxxxxxx” |
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Name: |
Xxx Xxxxxxxxx |
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Title: |
Managing Director |
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Per: |
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Name: |
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Title: |
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[Signature Page to Seventh Amending Agreement - Enerplus Corporation]
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XXXXXXXXXX XXX XXXXXXX XXXXXXXXXX XX XXXXXX | |
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Per: |
(signed) “Xxxxxx Xxxxxxx” |
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Name: |
Xxxxxx Xxxxxxx |
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Title: |
Director |
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Per: |
(signed) “Xxxx xxx Xxxxxx” |
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Name: |
Xxxx xxx Xxxxxx |
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Title: |
Managing Director |
[Signature Page to Seventh Amending Agreement - Enerplus Corporation]
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ATB FINANCIAL | |
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Per: |
(signed) “Xxxxxxx Xxxxxxxxxx” |
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Name: |
Xxxxxxx Xxxxxxxxxx |
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Title: |
Director |
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Per: |
(signed) “Xxxxxxx Belle” |
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Name: |
Xxxxxxx Belle |
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Title: |
Portfolio Manager, Energy |
[Signature Page to Seventh Amending Agreement - Enerplus Corporation]
CONFIRMATION OF GUARANTEE
For good and valuable consideration (the receipt and sufficiency of which is hereby conclusively acknowledged), the undersigned hereby: (a) consents to the terms of this Agreement and (b) confirms and agrees that its Guarantee made as of October 31, 2012 is and shall remain in full force and effect in all respects and, without limiting the generality of the foregoing, shall continue to exist and apply to all of the Obligations (as defined in such Guarantee), including, without limitation, the Obligations (as defined in such Guarantee) of the Borrower under, pursuant to or relating to the Amended Credit Agreement.
Capitalized terms used herein without express definition shall have the same meanings herein as are ascribed thereto in the Amended Credit Agreement.
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ENERPLUS RESOURCES U.S. INC. |
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ENERPLUS RESOURCES (USA) CORPORATION | ||
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Per: |
(signed) “Xxxx Xxxxxx Xxxxxx” |
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Per: |
(signed) “Xxxx Xxxxxx Xxxxxx” |
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Name: |
Xxxx Xxxxxx Xxxxxx |
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Name: |
Xxxx Xxxxxx Xxxxxx |
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Title: |
Senior Vice President and Chief Financial Officer |
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Title: |
Senior Vice President and Chief Financial Officer |
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Per: |
(signed) “Xxxxxx Xxxxxxxx ” |
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Per: |
(signed) “Xxxxxx Xxxxxxxx ” |
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Name: |
Xxxxxx Xxxxxxxx |
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Name: |
Xxxxxx Xxxxxxxx |
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Title: |
Vice President, Finance |
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Title: |
Vice President, Finance |
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3104613 NOVA SCOTIA LIMITED |
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Per: |
(signed) “Xxxx Xxxxxx Xxxxxx” |
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Name: |
Xxxx Xxxxxx Xxxxxx |
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Title: |
Senior Vice President and Chief Financial Officer |
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Per: |
(signed) “Xxxxxx Xxxxxxxx ” |
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Name: |
Xxxxxx Xxxxxxxx |
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Title: |
Vice President, Finance |
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[Signature Page to Seventh Amending Agreement - Enerplus Corporation]
Exhibit A to the Seventh Amending Agreement dated as of November 7, 2019 to the Enerplus Corporation Amended and Restated Credit Agreement dated October 31, 2012
LIST OF LENDERS AND COMMITMENTS
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INDIVIDUAL COMMITMENT | |
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LENDER |
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ADDRESS FOR NOTICES |
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AMOUNTS (U.S.$) | |
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Canadian Imperial Bank of |
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0xx Xxxxx, Xxxxxxx Xxxx Xxxx |
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$ |
95,000,000 |
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Xxxxx Xxxx xx Xxxxxx |
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0000, 000 — 0xx Xxxxxx X.X. |
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$ |
75,000,000 |
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Bank of Montreal |
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000, 000 — 0xx Xxxxxx X.X. |
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$ |
75,000,000 |
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The Bank of Nova Scotia |
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0000, 000 — 0xx Xxxxxx X.X. |
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$ |
67,500,000 |
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The Toronto-Dominion Bank |
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Suite 3600, 421 — 7th Avenue S.W. |
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$ |
67,500,000 |
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National Bank of Canada |
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1800, 000 — 0xx Xxxxxx X.X. |
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$ |
67,500,000 |
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Citibank, N.A., Canadian Branch |
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4000, 000 - 0xx Xxxxxx X.X. |
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$ |
52,500,000 |
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Xxxxx Fargo Bank N.A., Canadian Branch |
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2711, 000 — 0xx Xxxxxx XX |
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$ |
35,000,000 |
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INDIVIDUAL COMMITMENT | |
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LENDER |
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ADDRESS FOR NOTICES |
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AMOUNTS (U.S.$) | |
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Caisse centrale Xxxxxxxxxx |
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0000, Xxx Xxxx, Xxxxxx 600 |
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$ |
35,000,000 |
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Alberta Treasury Branches |
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000, 000 — 0xx Xxxxxx X.X. Attention: Manager, Energy and Facsimile: (000) 000-0000 |
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$ |
30,000,000 |
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COMMITMENT AMOUNT: |
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$ |
600,000,000 |
FRONTING LENDERS AND INDIVIDUAL FRONTED LC COMMITMENTS
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INDIVIDUAL COMMITMENT | |
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LENDER |
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ADDRESS FOR NOTICES |
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AMOUNTS (U.S.$) | |
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Canadian Imperial Bank of Commerce |
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0xx Xxxxx, Xxxxxxx Xxxx Xxxx |
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$ |
75,000,000 |
