First Amending Agreement to Credit Agreement, dated as of December 8, 2017, among AltaLink Investments, L.P., as borrower, AltaLink Investment Management Ltd., as general partner, Bank of Montreal, as administrative agent, and Lenders

EX-10.11 4 bhe123117ex1011.htm FIRST AMENDING AGREEMENT TO CREDIT AGREEMENT Exhibit

EXHIBIT 10.11

Execution Version

FIRST AMENDING AGREEMENT TO CREDIT AGREEMENT

dated as of December 8, 2017

ALTALINK INVESTMENT MANAGEMENT LTD.,
in its capacity as general partner of
ALTALINK INVESTMENTS, L.P.,

as Borrower,

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ALTALINK INVESTMENT MANAGEMENT LTD.,

as General Partner,

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BANK OF MONTREAL,

as Administrative Agent of the Lenders, and as Lender,

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THE OTHER LENDERS PARTY HERETO,

as Lenders

FIRST AMENDING AGREEMENT TO THE CREDIT AGREEMENT, dated as of December 8, 2017, among AltaLink Investment Management Ltd., in its capacity as general partner of AltaLink Investments, L.P., as Borrower, AltaLink Investment Management Ltd., as General Partner, Bank of Montreal, as Agent of the Lenders (the “Agent”), and the Lenders party hereto and acknowledged by the Initial Agent (as defined below).



RECITALS

WHEREAS AltaLink Investment Management Ltd., in its capacity as general partner of AltaLink Investments, L.P., as Borrower, Royal Bank of Canada, as agent (the “Initial Agent”) of the Lenders, and the Lenders are parties to a Credit Agreement made as of December 9, 2016 (the “Existing Credit Agreement” and, as amended by this First Amending Agreement, the “Credit Agreement”);

AND WHEREAS the Borrower, the General Partner, the Lenders, the Initial Agent and the Agent have agreed to amend certain provisions of the Existing Credit Agreement in the manner and on the terms and conditions provided for herein including to, among other things, replace the Initial Agent with the Agent.

NOW THEREFORE for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

ARTICLE 1

DEFINITIONS


1.1	Definitions

All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Existing Credit Agreement.

ARTICLE 2

AMENDMENTS


2.1	Amendment to the cover page.

The cover page of the Existing Credit Agreement is hereby amended by deleting the cover page in its entirety and replacing it with Exhibit A attached hereto.


2.2	Amendment to the preamble.

The preamble on page 1 of the Existing Credit Agreement is hereby amended by deleting the reference therein to “Royal Bank of Canada” and replacing such reference with “Bank of Montreal”.


2.3	Amendments to Section 1.1.


(a)	Section 1.1 of the Existing Credit Agreement is hereby amended by:


(i)	Adding the following new definition in the applicable alphabetical order:

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“BMO” means Bank of Montreal, its successors and permitted assigns.


(ii)	Deleting the definition of “RBC” in its entirety.

(b)

The definition of “2016 Supplemental Indenture” in Section 1.1 of the Existing Credit Agreement is hereby amended by deleting the reference therein to “as such indenture may be amended, supplemented or modified from time to time” and replacing such reference with “as such indenture has been amended as of December 8, 2017 and as may be further amended, supplemented or modified from time to time”.


(c)	The definition of “Agent” in Section 1.1 of the Existing Credit Agreement is hereby amended by deleting the reference therein to “RBC” and replacing such reference with “BMO”.


(d)	The definition of “Applicable Margin” in Section 1.1 of the Existing Credit Agreement is hereby amended by deleting the reference therein to “the Senior Bonds, Series 09-1,”.


(e)	The definition of “Documentary Credit Lenders” in Section 1.1 of the Existing Credit Agreement is hereby amended by deleting the reference therein to “Royal Bank of Canada” and replacing such reference with “Bank of Montreal”.


(f)	The definition of “Lenders” in Section 1.1 of the Existing Credit Agreement is hereby amended by deleting the reference therein to “RBC” and replacing such reference with “BMO”.


(g)	The definition of “Maturity Date” in Section 1.1 of the Existing Credit Agreement is hereby amended by deleting the reference therein to “December 8, 2017” and replacing such reference with “December 7, 2018”.


(h)	The definitions of “Senior Bonds, Series 09-1” and “Series 09-1 Supplemental indenture” in Section 1.1 of the Existing Credit Agreement are hereby deleted in their entirety.


(i)	The definition of “Senior Pledged Bond, Series 3” in Section 1.1 of the Existing Credit Agreement is hereby amended by deleting the reference therein to “December 9, 2016” and replacing such reference with “December 8, 2017”.


2.4	Amendment to Section 9.1(l)

Section 9.1(l) of the Existing Credit Agreement is hereby amended by deleting the reference therein to “the holders of the Senior Bonds, Series 09-1,”.


2.5	Amendment to Section 10.13

Section 10.13 of the Existing Credit Agreement is hereby amended by deleting the reference therein to “(i) Indebtedness under the Senior Bonds, Series 09-1, such Indebtedness not to exceed $150,000,000, excluding accrued but unpaid interest, in the aggregate at any time,” and items (ii) through (viii) in Section 10.13 shall be updated as items (i) through (vii), respectively.

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2.6	Amendment to Section 12.1(e)

Section 12.1(e) of the Existing Credit Agreement is hereby amended by deleting the reference therein to “the Senior Bonds, Series 09-1,”.


2.7	Amendment to Article 18

Article 18 of the Existing Credit Agreement is hereby amended by adding the following Section 18.2 at the end thereof:

18.2 Notice Details

For purposes of Section 18.1, the notice details for the Agent, the Borrower and the General Partner are:

If to the Agent:

Bank of Montreal

Agent Bank Services

234 Simcoe Street, 3rd Floor

Toronto, Ontario M5T 1T4

Attention: Manager, Agent Bank Services

Facsimile: (416) 598-6218

If to the Borrower and/or the General Partner:

AltaLink Management Ltd.

2611 - 3rd Avenue SE

Calgary, Alberta T2A 7W7

Attention: Christopher Lomore, Vice President, Treasurer

Facsimile: (403) 267-3407


2.8	Amendments to Schedules.

Schedule 1 (Borrower’s Certificate of Compliance), Schedule 2(A) (Borrowing Notice), Schedule 2(B) (Notice of Roll Over), Schedule 2(C) (Conversion Option Notice), Schedule 3 (Notice of Extension), Schedule 4 (Form of Issue Notice), Schedule 6 (Commitment of the Lenders), Schedule 6.1(A) (Form of Notice of Repayment) and Schedule 7 (Senior Pledged Bond, Series 3) of the Existing Credit Agreement are hereby amended by deleting each schedule in its entirety and replacing such schedule with Schedule 1 (Borrower’s Certificate of Compliance), Schedule 2(A) (Borrowing Notice), Schedule 2(B) (Notice of Roll Over), Schedule 2(C) (Conversion Option Notice), Schedule 3 (Notice of Extension), Schedule 4 (Form of Issue Notice), Schedule 6 (Commitment of the Lenders), Schedule 6.1(A) (Form of Notice of Repayment) and Schedule 7 (Senior Pledged Bond, Series 3), respectively, attached hereto.

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ARTICLE 3

CONDITIONS PRECEDENT


3.1	Conditions Precedent

This First Amending Agreement shall become effective upon satisfaction of the following conditions:


(a)	the Agent shall have received an executed copy of this First Amending Agreement from each of the Agent, the Lenders, the Borrower and the General Partner and acknowledged by the Initial Agent;


(b)	the Agent has received an upfront fee from the Borrower, which fee shall be in the amount of 4.5 bps calculated on the Commitment (as defined in the Credit Agreement after giving effect to this First Amending Agreement) of each Lender party to this First Amending Agreement, and payable to each such Lender;


(c)	the Agent shall have received a duly executed and original copy of an issued Senior Pledged Bond, Series 3 registered in the name of the Agent and evidence that the existing Senior Pledged Bond, Series 3 registered in the name of the Initial Agent has been returned to the Trustee and cancelled;


(d)	all representations and warranties set out in Section 4.1 below shall be true and correct in all respects;


(e)	the Agent shall have received a certified copy of an incumbency certificate setting forth specimen signatures of the authorized signatories of the Borrower and the General Partner; and


(f)	no Event of Default shall have occurred and be continuing.

The conditions set forth above are inserted for the sole benefit of the Lenders and may be waived by the Lenders in whole or in part, with or without terms or conditions.

ARTICLE 4

REPRESENTATIONS; WARRANTIES AND RELEASES


4.1	Representations and Warranties True and Correct; No Default or Event of Default

The Borrower and the General Partner each hereby represents and warrants to the Agent and the Lenders that after giving effect to this First Amending Agreement, (i) each of the representations and warranties of the Borrower and the General Partner, as the case may be, contained in the Existing Credit Agreement and each of the other Loan Documents is true and correct on, and as of, the date hereof as if made on such date (except to the extent that such representation or warranty expressly relates to an earlier date and except for changes therein expressly permitted or expressly contemplated by the Existing Credit Agreement), and (ii) no event has occurred and is continuing which constitutes or would constitute a Default or an Event of Default.

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4.2	Representations and Warranties regarding Accommodations and Fees and Performance under Existing Agreement

The Borrower and the Initial Agent, each hereby represent and warrant to the Agent, as applicable, as of the date hereof (it being understood that each of the Initial Agent’s representations and warranties below are given only as to documents and information in its possession or of which it otherwise has actual knowledge in its capacity as agent under the Existing Credit Agreement):


(a)	there are no Accommodations outstanding and there is no accrued interest payable under the Existing Credit Agreement as of December 7, 2017;


(b)	the Borrower has paid to the Initial Agent all fees due and owing on or prior to the date hereof in accordance with the Existing Credit Agreement, including pursuant to Article 5 thereof;


(c)	the Initial Agent has disbursed to the Lenders all fees paid to it by the Borrower on or prior to the date hereof in accordance with the Existing Credit Agreement; and


(d)	the Initial Agent has performed all obligations required by it, in its capacity as agent under the Existing Credit Agreement, in accordance with the terms and conditions of the Existing Agreement and in compliance with Applicable Law.


4.3	Release of Initial Agent

In reliance upon the accuracy of the Initial Agent’s representation and warranty in Section 4.2(d) above, the Borrower and the General Partner hereby release, discharge and acquit the Initial Agent and its officers, directors, agents and employees (collectively, the “Releasees”) from any and all claims, demands, liabilities and causes of action, whether in law or in equity, that the Borrower or the General Partner, at any time, had or has, or that it or its successors or assigns hereafter have or may have, against the Releasees directly or indirectly arising out of or in any way related to the Releasees being the Agent under the Credit Agreement or the other Loan Documents up to the date hereof. The rights of the Initial Agent in respect of its resignation set out herein and the rights of the Initial Agent under Article 17 and Article 19 of the Credit Agreement shall continue in full force and effect after the date hereof with respect to matters arising prior to the date hereof.

ARTICLE 5

ACKNOWLEDGEMENTS AND COVENANTS


5.1	Acknowledgement by the Majority Lenders

The Majority Lenders hereby acknowledge that the Agent is the replacement agent for purposes of Section 17.7 of the Credit Agreement.


5.2	Acknowledgements by the Borrower, the General Partner and the Lenders

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The Borrower, the General Partner and the Lenders acknowledge that (a) the Agent has no liability for actions of the Initial Agent, in respect of any acts or omissions in its capacity as agent under the Existing Credit Agreement or any of its other capacities under the Loan Documents and (b) the Initial Agent has no liability for actions of the Agent, in respect of any acts or omissions in its capacity as Agent or any of its other capacities under the Loan Documents. The Lenders acknowledge that the Agent should not be liable for any loss or liability incurred by any Lender as a consequence of the Agent not having been provided with all information or documents in the Initial Agent’s possession in its capacity as agent under the Existing Credit Agreement or otherwise.


5.3	Covenant to Provide Documents

Each of the Borrower, the General Partner and the Initial Agent covenants and agrees that it will, in each case at the Borrower's sole expense take all actions reasonably requested by the Agent or its representatives to facilitate the transfer of information to the Agent in connection with the Loan Documents.

ARTICLE 6

MISCELLANEOUS


6.1	No Other Amendments, Waivers or Consents

Except as expressly set forth herein, the Existing Credit Agreement and all Loan Documents shall be unmodified and shall continue to be in full force and effect in accordance with their terms.


6.2	Time

Time is of the essence in the performance of the parties’ respective obligations in this First Amending Agreement.


6.3	Governing Law

This First Amending Agreement is a contract made under, and shall be governed by and construed in accordance with, the laws of the Province of Alberta and the federal laws of Canada applicable therein.


6.4	Successors and Assigns

This First Amending Agreement shall enure to the benefit of, and be binding upon, the parties hereto and their respective successors and any assigns, transferees and endorsees of the Agent or any Lender. Nothing in this First Amending Agreement, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any benefit or any legal or equitable right, remedy or claim under the Existing Credit Agreement, as amended by this First Amending Agreement.


6.5	Counterparts

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This First Amending Agreement may be executed by the parties hereto in counterparts and may be delivered by facsimile or other electronic means (including via electronic mail in portable document format) and all such counterparts shall together constitute one and the same agreement.

[Remainder of page intentionally left blank – signature pages follow]

The parties hereto have duly executed this First Amending Agreement as of the date set forth on the first page of this Agreement.



		ALTALINK INVESTMENT MANAGEMENT LTD., in its capacity as General Partner of ALTALINK INVESTMENTS, L.P.
		By:	/s/ Calvin D. Haack
			Name: Calvin D. Haack
			Title: President / Director

		By:	/s/ Jeffrey A. Austin
			Name: Jeffrey A. Austin
			Title: Director