CDN.$1,500,000,000 NON-REVOLVING TERM CREDIT FACILITY FIRST AMENDING AGREEMENT MADE AS OF AUGUST 26, 2015 TO THE CREDIT AGREEMENT MADE AS OF MAY 15, 2015 BETWEEN ENBRIDGE INC. as Borrower AND THE FINANCIAL INSTITUTIONS AND OTHER PERSONS SET FORTH ON...
Exhibit 10.2
CDN.$1,500,000,000 NON-REVOLVING TERM CREDIT FACILITY
FIRST AMENDING AGREEMENT MADE AS OF AUGUST 26, 2015 TO THE CREDIT
AGREEMENT MADE AS OF MAY 15, 2015
BETWEEN
as Borrower
AND
THE FINANCIAL INSTITUTIONS AND OTHER PERSONS
SET FORTH ON SCHEDULE A HERETO,
and such other persons
as become parties hereto as lenders,
as Lenders
AND
THE TORONTO-DOMINION BANK
as Agent of the Lenders
The Toronto-Dominion Bank, Royal Bank of Canada, National Bank of Canada
and Bank of Montreal
as Joint Book Runners
The Toronto-Dominion Bank, Royal Bank of Canada, National Bank of Canada
and Bank of Montreal
as Co-Lead Arrangers
The Toronto-Dominion Bank
as Administrative Agent
Sumitomo Mitsui Banking Corporation of Canada
as Syndication Agent
HSBC Bank USA, N.A., Bank of America, N.A., Canada Branch, Société Généralé,
Mizuho Bank, Ltd. and The Bank of Nova Scotia
as Documentation Agents
THIS AGREEMENT is made as of August 26, 2015
BETWEEN:
ENBRIDGE INC., a corporation subsisting under the laws of Canada (hereinafter referred to as the “Borrower”),
OF THE FIRST PART,
- and -
THE FINANCIAL INSTITUTIONS SET FORTH ON THE SIGNATURE PAGES HEREOF UNDER THE HEADING “LENDERS:” (hereinafter sometimes collectively referred to as the “Lenders” and sometimes individually referred to as a “Lender”),
OF THE SECOND PART,
-and-
THE TORONTO-DOMINION BANK, a Canadian chartered bank, as agent of the Lenders (hereinafter referred to as the “Agent”),
OF THE THIRD PART.
WHEREAS the parties hereto have agreed to amend and supplement certain provisions of the Credit Agreement as hereinafter set forth;
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:
“Credit Agreement” means the credit agreement made as of May 15, 2015 between the Borrower, the Lenders and the Agent.
“First Amending Agreement” means this First Amending Agreement.
1.2 Capitalized terms used herein without express definition shall have the same meanings herein as are ascribed thereto in the Credit Agreement.
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1.3 The division of this First Amending Agreement into Sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this First Amending Agreement. The terms “this First Amending Agreement”, “hereof”, “hereunder” and similar expressions refer to this First Amending Agreement and not to any particular Section or other portion hereof and include any agreements supplemental hereto.
1.4 This First Amending Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein.
| 2. | Amendments and Supplements |
2.1 Provision of Unconsolidated Annual Financial Statements. Section 9.1(b) of the Credit Agreement is hereby amended to delete Section 9.1(b)(iii) in its entirety and to add the following as Sections 9.1(b)(iii) and 9.1(b)(iv):
“(iii) Unconsolidated Annual Financials – as soon as available, and in any event, within 90 days after the end of each of its fiscal years, copies of unaudited annual financial statements for the Borrower on an unconsolidated basis consisting of a statement of financial position, statement of earnings and statement of cash flows for each such year, together with the notes thereto, all prepared in accordance with GAAP consistently applied; and
(iv) Compliance Certificate – concurrently with furnishing the financial statements pursuant to Sections 9.1(b)(i), (ii) or (iii), a Compliance Certificate from the Borrower.”
2.2 Minimum Consolidated Shareholders’ Equity. The text of Section 9.3(a) of the Credit Agreement is hereby deleted in its entirety and replaced with “[reserved]”.
2.3 Issue Test Replaced by Maintenance Test. Section 9.3(b) of the Credit Agreement is hereby deleted in it is entirety and replaced with the following:
| “(b) | Maintenance Test |
The Borrower shall maintain, as of the last day of each Fiscal Quarter, a ratio of Consolidated Funded Obligations to Maintenance Test Total Consolidated Capitalization of no more than 75%. For the purposes of this Section 9.3(b), the principal of all Consolidated Funded Obligations or Subordinated Debt which is payable or will be payable in a foreign currency shall be converted to Canadian Dollars at the noon rate of exchange for Canadian interbank transactions on the date which Maintenance Test Total Consolidated Capitalization is determined.”
2.4 Replacement of Definition of Issue Test Total Consolidated Capitalization. In Section 1.1 of the Credit Agreement and in all other places where they appear in the Credit Agreement, the words “Issue Test Total Consolidated Capitalization” are hereby replaced with the words “Maintenance Test Total Consolidated Capitalization”.
2.5 Exchange and Confidentiality of Information. Section 14.1(2) of the Credit Agreement is hereby amended by revising Section 14.1(2)(e) to delete the phrase “a participation” in the
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third line thereof and replace same with the phrase “an actual or prospective assignment of or participation”.
| 3. | Representations and Warranties |
The Borrower hereby represents and warrants as follows to each Lender and the Agent and acknowledges and confirms that each Lender and the Agent is relying upon such representations and warranties:
| (a) | Capacity, Power and Authority |
| (i) | It is duly incorporated and is validly subsisting under the laws of its jurisdiction of incorporation or creation and has all the requisite corporate capacity, power and authority to carry on its business as presently conducted and to own its property; and |
| (ii) | It has the requisite corporate capacity, power and authority to execute and deliver this First Amending Agreement. |
| (b) | Authorization; Enforceability |
It has taken or caused to be taken all necessary action to authorize, and has duly executed and delivered, this First Amending Agreement, and this First Amending Agreement is a legal, valid and binding obligation of it, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, winding-up, insolvency, moratorium or other laws of general application affecting the enforcement of creditors’ rights generally and to the equitable and statutory powers of the courts having jurisdiction with respect thereto.
The representations and warranties set out in this First Amending Agreement shall survive the execution and delivery of this First Amending Agreement and the making of each Drawdown, notwithstanding any investigations or examinations which may be made by the Agent, the Lenders or Lenders’ Counsel. Such representations and warranties shall survive until the Credit Agreement has been terminated.
| 4. | Conditions Precedent |
The amendments and supplements to the Credit Agreement contained herein shall be effective upon, and shall be subject to, the Agent having received all executed counterparts to this First Amending Agreement.
| 5. | 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 First Amending Agreement, shall be and continue to be in full force and effect and the Credit Agreement, as amended and supplemented by this First Amending Agreement, and each of the other Documents to which the Borrower is a party is hereby ratified and confirmed and shall
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from and after the date hereof continue in full force and effect as herein amended and supplemented, with such amendments and supplements being effective upon satisfaction of the conditions precedent set forth in Section 4 hereof. This First Amending Agreement shall constitute a Document for purposes of the Credit Agreement and the other Documents. The execution, delivery and effectiveness of this First Amending Agreement shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Agent under any of the Documents, nor constitute a waiver of any provision of any of the Documents.
| 6. | 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 First Amending Agreement.
| 7. | Counterparts |
This First Amending Agreement may be executed in any number of counterparts and delivered by facsimile or other means of electronic communication, each of which shall be deemed to be an original and all of which taken together shall be deemed to constitute one and the same instrument, and it shall not be necessary in making proof of this First Amending Agreement to produce or account for more than one such counterpart.
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IN WITNESS WHEREOF the parties hereto have executed this First Amending Agreement as of the date first above written.
| ENBRIDGE INC. | ||
| Per: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Vice President & Corporate Secretary | ||
| Per: | /s/ Xxxxxxx Xxxxxx | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: VP Treasury | ||
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| LENDERS: | ||
| THE TORONTO-DOMINION BANK | ||
| Per: | /s/ Xxxxx Xxxxxxxx | |
| Name: Xxxxx Xxxxxxxx | ||
| Title: Director | ||
| Per: | /s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx | ||
| Title: Director | ||
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| ROYAL BANK OF CANADA | ||
| Per: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Authorized Signatory | ||
| Per: |
| |
| Name: | ||
| Title: | ||
0
| XXXXXXXX XXXX XX XXXXXX | ||
| Per: | /s/ Xxxx Xxxxxxxxxx | |
| Name: Xxxx Xxxxxxxxxx | ||
| Title: Authorized Signatory | ||
| Per: | /s/ Xxxx Xxxxxxxxxx | |
| Name: Xxxx Xxxxxxxxxx | ||
| Title: Authorized Signatory | ||
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| BANK OF MONTREAL | ||
| Per: | /s/ Xxxx Xxxxx | |
| Name: Xxxx Xxxxx | ||
| Title: Director | ||
| Per: | /s/ Xxxxxxxx Xxx | |
| Name: Xxxxxxxx Xxx | ||
| Title: Associate | ||
00
| XXXXXXXX XXXXXX XXXXXXX XXXXXXXXXXX XX XXXXXX | ||
| Per: | /s/ Xxxxxx Xxx | |
| Name: Xxxxxx Xxx | ||
| Title: Senior Vice President | ||
| Per: |
| |
| Name: | ||
| Title: | ||
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| HSBC BANK USA, N.A. | ||
| Per: | /s/ Xxxxxxxxx Xxx | |
| Name: Xxxxxxxxx Xxx | ||
| Title: Senior Vice President Multinationale #19168 | ||
| Per: |
| |
| Name: | ||
| Title: | ||
00
| XXXX XX XXXXXXX, X.X., XXXXXX BRANCH | ||
| Per: | /s/ Xxxxx K.G. Xxxxxxxx | |
| Name: Xxxxx K.G. Xxxxxxxx | ||
| Title: Director | ||
| Per: |
| |
| Name: | ||
| Title: | ||
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| SOCIÉTÉ GÉNÉRALÉ | ||
| Per: | /s/ Xxx Xxxx | |
| Name: Xxx Xxxx | ||
| Title: Director | ||
| Per: |
| |
| Name: | ||
| Title: | ||
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| MIZUHO BANK, LTD. | ||
| Per: | /s/ Xxxx X. Xxxxxx | |
| Name: Xxxx X. Xxxxxx | ||
| Title: Senior Vice President | ||
| Per: |
| |
| Name: | ||
| Title: | ||
00
| XXX XXXX XX XXXX XXXXXX | ||
| Per: | /s/ Xxxx Xxxx | |
| Name: Xxxx Xxxx | ||
| Title: Managing Director | ||
| Per: | /s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | ||
| Title: Associate | ||
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| DNB CAPITAL LLC | ||
| Per: | /s/ Xxx Xxxxx | |
| Name: Xxx Xxxxx | ||
| Title: Senior Vice President | ||
| Per: | /s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | ||
| Title: First Vice Xxxxxxxxx | ||
00
| XXXXXX XXXXXXXX XXXXXXXXXX | ||
| Per: | /s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | ||
| Title: Director | ||
| Per: | /s/ Xxxx xxx Xxxxxx | |
| Name: Xxxx xxx Xxxxxx | ||
| Title: Managing Director | ||
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| CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK | ||
| Per: | /s/ Xxxxx Xxxxxx Caresmel | |
| Name: Xxxxx Xxxxxx Caresmel | ||
| Title: Director | ||
| Per: | /s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | ||
| Title: Managing Director | ||
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| CITIBANK CANADA | ||
| Per: | /s/ Xxxxxxxx Xxxx | |
| Name: Xxxxxxxx Xxxx | ||
| Title: Authorized Signatory | ||
| Per: |
| |
| Name: | ||
| Title: | ||
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| BNP PARIBAS | ||
| Per: | /s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | ||
| Title: Director | ||
| Per: | /s/ Xxxxxxxxx Xxxxx | |
| Name: Xxxxxxxxx Xxxxx | ||
| Title: Vice President | ||
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| ALBERTA TREASURY BRANCHES | ||
| Per: | /s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | ||
| Title: Director, Energy | ||
| Per: | /s/ Xxxxx Xxxxxxxx | |
| Name: Xxxxx Xxxxxxxx | ||
| Title: Associate Director | ||
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| AGENT: | ||
| THE TORONTO-DOMINION BANK, in its capacity as the Agent | ||
| Per: | /s/ Xxxxx Xxx | |
| Name: Xxxxx Xxx | ||
| Title: Director, Loans Syndications - Agency | ||
