EX-99.6 7 a16-21995_1ex99d6.htm EX-99.6

Exhibit 99.6

 

EXECUTION VERSION

 

FIFTH AMENDING AGREEMENT

RE: SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

THIS AGREEMENT made as of the 17th day of August, 2016.

 

BETWEEN:

 

THE BANK OF NOVA SCOTIA,

a Canadian chartered bank

 

(herein, in its capacity as administrative agent of the Lenders, called the “Agent”)

 

— and —

 

THE BANK OF NOVA SCOTIA,

CANADIAN IMPERIAL BANK OF COMMERCE,
ROYAL BANK OF CANADA,

BANK OF MONTREAL,

THE TORONTO-DOMINION BANK,
HSBC BANK CANADA,

NATIONAL BANK OF CANADA,

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
CANADA BRANCH,

BANK OF AMERICA, N.A., CANADA BRANCH,
MORGAN STANLEY BANK, N.A.,

CAISSE CENTRALE DESJARDINS AND

WELLS FARGO BANK, NATIONAL ASSOCIATION

 

(herein, in their capacities as lenders to the Borrower, collectively called the “Lenders” and individually called a “Lender”)

 

— and —

 

FORTIS INC.,

a corporation existing under the laws of the Province of Newfoundland and Labrador

 

(herein called the “Borrower”)

 

WHEREAS, pursuant to a second amended and restated credit agreement made as of August 9, 2011 among the Borrower, the Agent and the Lenders as amended by a first amending agreement thereto made as of July 5, 2012, a second amending agreement thereto made as of August 1, 2013, a third amending agreement thereto made as of March 23, 2015 and a fourth amending agreement thereto made as of April 25, 2016 (collectively, the “Credit Agreement”), the Lenders have established a certain credit facility in favour of the Borrower;

 


 

AND WHEREAS, pursuant to an Accordion Notice dated April 4, 2012 addressed to the Agent, the Borrower requested that the amount of the Credit Facility be increased by $200,000,000 and the Lenders agreed to such increase;

 

AND WHEREAS, pursuant to an Accordion Agreement dated as of May 2, 2012, Caisse Centrale Desjardins and Wells Fargo, National Association became Lenders under the Credit Agreement;

 

AND WHEREAS, pursuant to an Accordion Notice dated July 15, 2016 addressed to the Agent, the Borrower requested that the amount of the Credit Facility be further increased by $300,000,000 and the Lenders agreed, subject to the terms and conditions hereof, to such increase;

 

AND WHEREAS the parties hereto wish to amend certain provisions of the Credit Agreement the aforesaid $300,000,000 further increase to the Credit Facility;

 

NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the mutual covenants and agreements contained herein, the parties covenant and agree as follows:

 

ARTICLE 1

 

DEFINED TERMS

 

1.1                                                                               Capitalized Terms

 

All capitalized terms which are used herein without being specifically defined herein shall have the meaning ascribed thereto in the Credit Agreement as amended hereby.

 

ARTICLE 2

 

AMENDMENTS

 

2.1                                                                               General Rule

 

Subject to the terms and conditions herein contained, the Credit Agreement is hereby amended to the extent necessary to give effect to the provisions of this agreement and to incorporate the provisions of this agreement into the Credit Agreement.

 

2.2                                                                               Schedule A

 

Schedule A of the Credit Agreement is hereby deleted in its entirety and replaced by the form of Schedule A attached hereto. The parties hereto acknowledge that, upon this agreement becoming effective, no further increase to the Credit Facility pursuant to Section 2.6 of the Credit Agreement shall be permitted.

 

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ARTICLE 3

 

REPRESENTATIONS AND WARRANTIES

 

3.1                                                                               Representations and Warranties

 

To induce the Lenders and the Agent to enter into this agreement, the Borrower hereby represents and warrants to the Lenders and the Agent that:

 

(a)                                 the representations and warranties of the Borrower which are contained in Section 10.1 of the Credit Agreement are true and correct on the date hereof as if made of the date hereof and that, as of the date hereof, no Material Adverse Change has occurred since December 31, 2015; and

 

(b)                                 no Default or Event of Default exists as at the date hereof or would arise as a result of this agreement becoming effective.

 

This representation and warranty is given solely as of the date of this agreement and the provisions of Section 12.1(c) of the Credit Agreement do not apply to the representations and warranties in this Section 3.1.

 

ARTICLE 4

 

CONDITIONS PRECEDENT TO EFFECTIVENESS OF AGREEMENT

 

4.1                                                                               Conditions Precedent

 

This agreement shall not become effective until the following conditions precedent have been met:

 

(a)                                 this agreement shall be executed and delivered by the Borrower, the Administrative Agent and the Lenders; and

 

(b)                                 the Borrower shall have paid to the Administrative Agent, for the benefit of the Lenders, such fees as have been agreed upon between the Borrower and the Administrative Agent with respect to the execution and delivery of this agreement.

 

ARTICLE 5

 

MISCELLANEOUS

 

5.1                                                                               Future References to the Credit Agreement

 

On and after the date of this agreement, each reference in the Credit Agreement to “this agreement”, “hereunder”, “hereof”, or words of like import referring to the Credit Agreement and each reference in any related document to the “Credit Agreement”, “thereunder”, “thereof”, or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as amended hereby. The Credit Agreement, as amended

 

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hereby, is and shall continue to be in full force and effect and is hereby in all respects ratified and confirmed.

 

5.2                                                                               Governing Law

 

This agreement shall be governed by and construed in accordance with the Laws of the Province of Ontario and the federal Laws of Canada applicable therein.

 

5.3                                                                               Enurement

 

This agreement shall enure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns.

 

5.4                                                                               Conflict

 

If any provision of this agreement is inconsistent or conflicts with any provision of the Credit Agreement, the relevant provision of this agreement shall prevail and be paramount.

 

5.5                                                                               Further Assurances

 

The Borrower shall do, execute and deliver or shall cause to be done, executed and delivered all such further acts, documents and things as the Agent may reasonably request for the purpose of giving effect to this agreement and to each and every provision hereof.

 

5.6                                                                               Counterparts

 

This agreement may be executed in one or more counterparts, 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.

 

5.7                                                                               No Waiver

 

The execution, delivery and effectiveness of this 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 Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

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IN WITNESS WHEREOF the parties hereto have executed and delivered this agreement on the date first above written.

 

 

FORTIS INC.

 

 

 

 

 

By:

/s/ Barry V. Perry

 

 

Name:

Barry V. Perry

 

 

Title:

President & CEO

 

 

 

 

 

 

 

 

 

By:

/s/ James D. Spinney

 

 

Name:

James D. Spinney

 

 

Title:

Vice President, Treasurer

 

 

 

 

 

THE BANK OF NOVA SCOTIA
as Agent

 

 

 

By:

/s/ Clement Yu

 

 

Name:

Clement Yu

 

 

Title:

Director

 

 

 

 

 

 

 

 

 

By:

/s/ Ryan Moonilal

 

 

Name:

Ryan Moonilal

 

 

Title:

Analyst

 

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THE BANK OF NOVA SCOTIA
as Lender

 

 

 

By:

/s/ R.S. Hartlen

 

 

Name:

R.S. Hartlen

 

 

Title:

Managing Director

 

 

 

 

 

 

 

 

 

By:

/s/ G.F. Carson

 

 

Name:

G.F. Carson

 

 

Title:

Director

 

 

 

 

 

CANADIAN IMPERIAL BANK OF COMMERCE

 

 

 

By:

/s/ Giovanni Strazzullo

 

 

Name:

Giovanni Strazzullo

 

 

Title:

Executive Director

 

 

 

 

 

 

 

 

 

By:

/s/ Siddharth Samarth

 

 

Name:

Siddharth Samarth

 

 

Title:

Executive Director

 

 

 

 

 

ROYAL BANK OF CANADA

 

 

 

 

 

By:

/s/ Timothy P. Murray

 

 

Name:

TIMOTHY P. MURRAY

 

 

Title:

AUTHORIZED SIGNATORY

 

 

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

 

Title:

 

 

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BANK OF MONTREAL

 

 

 

 

 

By:

/s/ Grace Potter

 

 

Name:

Grace Potter

 

 

Title:

Vice President

 

 

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

 

Title:

 

 

 

 

 

 

THE TORONTO-DOMINION BANK

 

 

 

 

 

By:

/s/ Brendon D’Mello

 

 

Name:

Brendon D’Mello

 

 

Title:

Vice President

 

 

 

 

 

 

 

 

 

By:

/s/ Matthew Hendel

 

 

Name:

Matthew Hendel

 

 

Title:

Managing Director

 

 

 

 

 

HSBC BANK CANADA

 

 

 

 

 

By:

/s/ My N Le

 

 

Name:

My N Le

 

 

Title:

Vice President Global Banking

 

 

 

 

 

 

 

 

 

By:

/s/ Casey Coates

 

 

Name:

Casey Coates

 

 

Title:

Managing Director, Global Banking

 

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NATIONAL BANK OF CANADA

 

 

 

 

 

By:

/s/ Mark Williamson

 

 

Name:

Mark Williamson

 

 

Title:

Authorized Signatory

 

 

 

 

 

 

 

 

 

By:

/s/ John Niedermier

 

 

Name:

John Niedermier

 

 

Title:

Authorized Signatory

 

 

 

 

 

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
CANADA BRANCH

 

 

 

 

 

By:

/s/ Michael Quinn

 

 

Name:

Michael Quinn

 

 

Title:

Director

 

 

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

 

Title:

 

 

 

 

 

 

BANK OF AMERICA, N.A., CANADA
BRANCH

 

 

 

 

 

By:

/s/ James Campbell

 

 

Name:

James Campbell

 

 

Title:

Director

 

 

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

 

Title:

 

 

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MORGAN STANLEY BANK, N.A.

 

 

 

 

 

By:

/s/ Michael King

 

 

Name:

Michael King

 

 

Title:

Authorized Signatory

 

 

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

 

Title:

 

 

 

 

 

 

CAISSE CENTRALE DESJARDINS

 

 

 

 

 

By:

/s/ Catherine McCarthy

 

 

Name:

Catherine McCarthy

 

 

Title:

Directeur, Financement Corpoail

 

 

 

Director, Corporate Banking

 

 

 

 

 

 

 

 

 

By:

/s/ Mathieu Talbot

 

 

Name:

Mathieu Talbot

 

 

Title:

Managing Director and Head

 

 

 

Loan Structuring & Syndication

 

 

 

 

 

WELLS FARGO BANK, N.A.,
CANADIAN BRANCH

 

 

 

 

 

By:

/s/ Sean Buchan

 

 

Name:

Sean Buchan

 

 

Title:

SVP Loan Team Manager

 

 

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

 

Title:

 

 

Fifth Amending Agreement

 

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