AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
Execution Version
AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT AGREEMENT dated as of January 5, 2017 (this “Amendment”), among SPECTRA ENERGY CAPITAL, LLC, a Delaware limited liability company (the “Borrower”), SPECTRA ENERGY CORP, a Delaware corporation (“Parent”), and each Lender (as defined below) party hereto.
Reference is hereby made to (i) the Amended and Restated Credit Agreement dated as of November 1, 2013 (as heretofore amended, restated, supplemented or otherwise modified, the “Credit Agreement,” and as amended by this Amendment, the “Amended Credit Agreement”), by and among the Borrower, Parent, the lenders from time to time party thereto (the “Lenders”) and JPMorgan Chase Bank, N.A., in its capacity as administrative agent (the “Agent”), and (ii) the Agreement and Plan of Merger dated as of September 5, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), by and among Parent, Enbridge Inc. and Sand Merger Sub, Inc., pursuant to which Parent and Enbridge Inc. (or any subsidiary thereof) may merge (the “Proposed Merger”).
In connection with the Proposed Merger, the Borrower, Parent and the Lenders wish to amend the Credit Agreement in certain respects, and accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this Amendment, terms defined in the Amended Credit Agreement are used herein as defined therein.
Section 2. Amendments. Subject to the satisfaction of the conditions precedent specified in Section 4 of this Amendment, but effective immediately upon the consummation of the Proposed Merger, the Credit Agreement shall be amended as follows:
2.01 Definitions.
(a) Section 1.01 of the Credit Agreement shall be amended by adding the following definitions in the appropriate alphabetical location:
““Enbridge Parent” means Enbridge Inc., a Canadian corporation.
“Merger Agreement” means the Agreement and Plan of Merger dated as of September 5, 2016, as amended, restated, supplemented, or otherwise modified from time to time, among Parent, Enbridge Parent and Sand Merger Sub, Inc., a Delaware corporation.
“Proposed Merger” means the proposed merger of Enbridge Parent (or any Subsidiary thereof) and Parent pursuant to the Merger Agreement.”
(b) Section 1.01 of the Credit Agreement shall be amended by restating the definition of “Joint Lead Arrangers” in its entirety to read as follows:
““Joint Lead Arrangers” means JPMorgan Chase Bank, N.A., Citigroup Global Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated (or any other
registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), Mizuho Bank, Ltd. and Wells Fargo Securities, LLC.”
2.02 Consolidations, Mergers and Sales of Assets. Section 5.09(a) of the Credit Agreement shall be amended by amending and restating the proviso contained therein in its entirety to read as follows:
“provided that (A) the Borrower may merge with another Person if the Borrower is the entity surviving such merger and, after giving effect thereto, no Event of Default or Default shall have occurred and be continuing, and (B) Parent may merge with Enbridge Parent or a subsidiary thereof in connection with the Proposed Merger.”
2.03 Change of Control. Section 6.01(g) shall be amended and restated in its entirety to read as follows:
“(g) (i) Parent ceasing to own, directly or indirectly, all of the issued and outstanding Equity Securities of the Borrower; or (ii) Enbridge Parent ceasing to own, directly or indirectly, a majority of the Voting Stock of Parent (or other Equity Securities convertible into such Voting Stock); or”
Section 3. Representations and Warranties. Parent and the Borrower represent and warrant to the Lenders party hereto that (a) the representations and warranties contained Section 4.01 of the Amended Credit Agreement are correct in all material respects (except for those representations and warranties qualified by “materiality,” “Material Adverse Effect” or a like qualification, which shall be correct in all respects) on the Amendment Effective Date (as defined below) (except for those representations and warranties that specifically relate to a prior date, which shall have been correct on such prior date) and (b) no Default or Event of Default has occurred and is continuing on the Amendment Effective Date or would result from giving effect to this Amendment.
Section 4. Conditions Precedent. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which the following conditions precedent have been satisfied:
4.01 Counterparts. The Agent shall have received one or more counterparts of this Amendment, executed and delivered by the Borrower, Parent and Lenders constituting the Required Lenders.
4.02 Fees. The Agent shall have received all fees and other amounts due and payable to it on or prior to the Amendment Effective Date, including reimbursement or payment of all reasonable and invoiced out-of-pocket fees, charges and expenses of a single counsel to the Agent in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and such other counsel retained with the Borrower’s prior written consent (such consent not to be unreasonably withheld or delayed), required to be reimbursed or paid by the Borrower under the Amended Credit Agreement.
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Section 5. References Generally. References in the Credit Agreement (including references to the Credit Agreement as amended hereby) to “this Agreement” (and indirect references such as “hereunder”, “hereby”, “herein” and “hereof”) shall be deemed to be references to the Credit Agreement as amended hereby.
Section 6. Miscellaneous. Except as herein provided, the Credit Agreement shall remain unchanged and in full force and effect, and each of Parent and the Borrower (a) ratifies, confirms and reaffirms all provisions of the Credit Agreement as amended by this Amendment, and (b) ratifies and confirms that all obligations of each of Parent and the Borrower under the Notes and the Credit Agreement as amended by this Amendment are not released, reduced, or otherwise adversely affected by this Amendment. The execution and delivery of this Amendment shall not constitute a novation of any indebtedness or other obligations owing to any Lender, any Issuing Bank or the Agent under the Credit Agreement based on facts or events occurring or existing prior to the execution and delivery of this Amendment. This Amendment may be executed in any number of counterparts and by different parties hereto in separate 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 to this Amendment by facsimile or other electronic means (.pdf or .tif) shall be effective as delivery of a manually executed counterpart of this Amendment. This Amendment shall be governed by, and construed in accordance with, the law of the State of New York. Each of the parties hereto hereby irrevocably and unconditionally submits to the exclusive jurisdiction and venue of the United States District Court for the Southern District of New York and of any New York State court sitting in New York County, Borough of Manhattan, and any appellate court from any such federal or state court, for purposes of all suits, actions or legal proceedings arising out of or relating to this Amendment and the Amended Credit Agreement or the transactions contemplated hereby or thereby. Each of the parties hereto irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. EACH OF PARENT, THE BORROWER AND THE LENDERS PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AMENDMENT, THE AMENDED CREDIT AGREEMENT OR THE NOTES OR THE ACTIONS OF THE AGENT OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF. This Amendment constitutes the entire agreement and understanding among the parties hereto and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.
[Remainder of page intentionally left blank; signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the day and year first above written.
| SPECTRA ENERGY CAPITAL, LLC, as Borrower | ||
| By: | /s/ Laura J. Buss Sayavedra | |
| Name: Laura J. Buss Sayavedra | ||
| Title: Vice President and Treasurer | ||
| SPECTRA ENERGY CORP, as Parent | ||
| By: | /s/ Laura J. Buss Sayavedra | |
| Name: Laura J. Buss Sayavedra | ||
| Title: Vice President and Treasurer | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| JPMORGAN CHASE BANK, N.A., as a Lender | ||
| By: | /s/ Bridget Killackey | |
| Name: Bridget Killackey | ||
| Title: Executive Director | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| BANK OF AMERICA, N.A., as a Lender | ||
| By: | /s/ Michael Clayborne | |
| Name: Michael Clayborne | ||
| Title: Director | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| CITIBANK, N.A., as a Lender | ||
| By: | /s/ Maureen Maroney | |
| Name: Maureen Maroney | ||
| Title: Vice President | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| MIZUHO BANK, LTD., as a Lender | ||
| By: | /s/ Leon Mo | |
| Name: Leon Mo | ||
| Title: Authorized Signatory | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender | ||
| By: | /s/ Doug McDowell | |
| Name: Doug McDowell | ||
| Title: Senior Portfolio Manager | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Lender | ||
| By: | /s/ Sherwin Brandford | |
| Name: Sherwin Brandford | ||
| Title: Director | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| SUMITOMO MITSUI BANKING CORPORATION, as a Lender | ||
| By: | /s/ James D. Weinstein | |
| Name: James D. Weinstein | ||
| Title: Managing Director | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| SUNTRUST BANK, as a Lender | ||
| By: | /s/ Chulley Bogle | |
| Name: Chulley Bogle | ||
| Title: Vice President | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| BARCLAYS BANK PLC, as a Lender | ||
| By: | /s/ Ronnie Glenn | |
| Name: Ronnie Glenn | ||
| Title: Vice President | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender | ||
| By: | /s/ Vipul Dhadda | |
| Name: Vipul Dhadda | ||
| Title: Authorized Signatory | ||
| By: | /s/ Joan Park | |
| Name: Joan Park | ||
| Title: Authorized Signatory | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| DEUTSCHE BANK AG NEW YORK BRANCH, | ||
| as a Lender | ||
| By: | /s/ Ming K. Chu | |
| Name: Ming K. Chu | ||
| Title: Director | ||
| By: | /s/ Virginia Cosenza | |
| Name: Virginia Cosenza | ||
| Title: Vice President | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| GOLDMAN SACHS BANK USA, as a Lender | ||
| By: | /s/ Ushma Dedhiya | |
| Name: Ushma Dedhiya | ||
| Title: Authorized Signatory | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| MORGAN STANLEY BANK, N.A., | ||
| as a Lender | ||
| By: | /s/ Patrick Layton | |
| Name: Patrick Layton | ||
| Title: Authorized Signatory | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| ROYAL BANK OF CANADA, as a Lender | ||
| By: | /s/ Jason S. York | |
| Name: Jason S. York | ||
| Title: Authorized Signatory | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| UBS AG, STAMFORD BRANCH, as a Lender | ||
| By: | /s/ Houssem Daly | |
| Name: Houssem Daly | ||
| Title: Associate Director | ||
| By: | /s/ Darlene Arias | |
| Name: Darlene Arias | ||
| Title: Director | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| KEYBANK NATIONAL ASSOCIATION, | ||
| as a Lender | ||
| By: | /s/ Kevin D. Smith | |
| Name: Kevin D. Smith | ||
| Title: Senior Vice President | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| THE NORTHERN TRUST COMPANY, | ||
| as a Lender | ||
| By: | /s/ Keith L. Burson | |
| Name: Keith L. Burson | ||
| Title: Senior Vice President | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| BMO HARRIS BANK N.A., as a Lender | ||
| By: | /s/ Gumaro Tijerina | |
| Name: Gumaro Tijerina | ||
| Title: Managing Director | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| SCOTIABANC INC., | ||
| as a Lender | ||
| By: | /s/ J. Lima | |
| Name: J. Lima | ||
| Title: Associate Director | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| CANADIAN IMPERIAL BANK OF | ||
| COMMERCE, NEW YORK BRANCH, as a Lender | ||
| By: | /s/ Richard Antl | |
| Name: Richard Antl | ||
| Title: Authorized Signatory | ||
| By: | /s/ William M. Reid | |
| Name: William M. Reid | ||
| Title: Authorized Signatory | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| Toronto Dominion (New York) LLC, as a Lender | ||
| By: | /s/ Annie Dorval | |
| Name: Annie Dorval | ||
| Title: Authorized Signatory | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
| EXPORT DEVELOPMENT CANADA, | ||
| as a Lender | ||
| By: | /s/ Trevor Mulligan | |
| Name: Trevor Mulligan | ||
| Title: Asset Manager | ||
| By: | /s/ David Thompson | |
| Name: David Thompson | ||
| Title: Asset Manager | ||
Signature Page to Amendment No. 3 to Amended and Restated Credit Agreement
(Spectra Energy Capital, LLC)
