Obsidian Energy Ltd 6-K, filed Mar 29, 2021
Obsidian Energy Ltd. (OBE)
About this 6-K
Obsidian Energy Ltd filed this 6-K on March 29, 2021.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
OF THE SECURITIES EXCHANGE ACT OF 1934
For the month of March 2021
Commission File Number 1-32895
Obsidian Energy Ltd.
(Translation of registrant’s name into English)
Suite 200, 207 – 9th Avenue SW
Calgary, Alberta T2P 1K3
Canada
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.)
Form 20-F ☐ Form 40-F ☒
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1) ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7) ☐
DOCUMENTS INCLUDED AS PART OF THIS FORM 6-K
See the Exhibit Index hereto.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, on March 29, 2021.
| OBSIDIAN ENERGY LTD. | ||
| By: |
/s/ Stephen E. Loukas | |
| Name: |
Stephen E. Loukas | |
| Title: |
Interim President and CEO | |
2
EXHIBIT INDEX
| Exhibit |
Description | |
| 99.1 | Material Contract - Seventh Amending Agreement to the Obsidian Energy Ltd. Amended and Restated Credit Agreement, dated February 28, 2020 | |
| 99.2 | Material Contract - Eighth Amending Agreement to the Obsidian Energy Ltd. Amended and Restated Credit Agreement, dated March 4, 2020 | |
| 99.3 | Material Contract - Ninth Amending Agreement to the Obsidian Energy Ltd. Amended and Restated Credit Agreement, dated March 13, 2020 | |
| 99.4 | Material Contract - Tenth Amending Agreement to the Obsidian Energy Ltd. Amended and Restated Credit Agreement, dated March 27, 2020 | |
| 99.5 | Material Contract - Eleventh Amending Agreement to the Obsidian Energy Ltd. Amended and Restated Credit Agreement, dated June 22, 2020 | |
| 99.6 | Material Contract - Twelfth Amending Agreement to the Obsidian Energy Ltd. Amended and Restated Credit Agreement, dated September 23, 2020 | |
| 99.7 | Material Contract - Thirteenth Amending Agreement to the Obsidian Energy Ltd. Amended and Restated Credit Agreement, dated October 29, 2020 | |
Exhibit 99.1
Redacted Version
SEVENTH AMENDING AGREEMENT
TO THE OBSIDIAN ENERGY LTD.
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SEVENTH AMENDING AGREEMENT is made effective as of February 28, 2020 (the “Seventh Amendment Date”),
BETWEEN:
OBSIDIAN ENERGY LTD.
as Borrower
- and -
ROYAL BANK OF CANADA,
THE BANK OF NOVA SCOTIA,
BANK OF MONTREAL,
CANADIAN IMPERIAL BANK OF COMMERCE,
EXPORT DEVELOPMENT CANADA,
ATB FINANCIAL,
FÉDÉRATION DES CAISSES DESJARDINS DU QUÉBEC,
NATIONAL BANK OF CANADA, and
BUSINESS DEVELOPMENT BANK OF CANADA
as Lenders
- and -
ROYAL BANK OF CANADA
as Administrative Agent on behalf of the Lenders
PREAMBLE:
| A. | Pursuant to the Amended and Restated Credit Agreement dated May 18, 2017 as amended by a first amending agreement dated May 10, 2018, a second amending agreement dated December 14, 2018, a third amending agreement dated March 21, 2019, a fourth amending agreement dated May 31, 2019, a fifth amending agreement made effective as of June 28, 2019 and a sixth amending agreement (the “Sixth Amending Agreement”) made effective as of August 12, 2019 (as so amended, the “Credit Agreement”), among Obsidian Energy Ltd. (by its former name, Penn West Petroleum Ltd.), as borrower (the “Borrower”), Royal Bank of Canada (“RBC”) and each of the other financial institutions party thereto, as lenders, and RBC, as administrative agent (the “Agent”), the Lenders agreed to provide to the Borrower the Credit Facilities. |
| B. | The Parties wish to amend the Credit Agreement on the terms and conditions herein provided. |
AGREEMENT:
NOW THEREFORE in consideration of the premises, the covenants and the agreements herein contained, the Parties agree as follows:
| 1. | Definitions. Capitalized terms used in this Seventh Amending Agreement will, unless otherwise defined herein, have the meanings attributed to such terms in the Credit Agreement, as amended hereby (the “Amended Credit Agreement”). In addition, for purposes of this Seventh Amending agreement, the following capitalized terms have the following meanings: |
“February 28 Bank Amount” means the Canadian Dollar Exchange Equivalent of the outstanding Aggregate Principal Amount as at February 28, 2020.
“True-Up Payment” means each permanent repayment or prepayment, as the case may be, of the Existing Notes and Aggregate Principal Amount and permanent reductions of the Commitment Amount after the Seventh Amendment Date, whether voluntary or through mandatory application of asset disposition proceeds.
“True-Up Payment Application” means, with respect to each True-Up Payment, the application of such True-Up Payment in the following manner: (a) first, to repay the Aggregate Principal Amount, together with accrued interest thereon, to the extent that the Canadian Dollar Exchange Equivalent of the then outstanding Aggregate Principal Amount exceeds the February 28 Bank Amount, together with a corresponding dollar-for-dollar permanent reduction in the Commitment Amount; and (b) second, on a pro rata basis determined on the basis of the February 28 Bank Amount and the Canadian Dollar Exchange Equivalent of the aggregate outstanding principal amount of the Existing Notes as at February 28, 2020, to (i) repay the Aggregate Principal Amount, together with accrued interest thereon, together with a corresponding dollar-for-dollar permanent reduction in the Commitment Amount, and (ii) repay the aggregate outstanding principal amount of the Existing Notes together with accrued and unpaid interest thereon, in the case of both (i) and (ii) without any make-whole or premium of any kind.
| 2. | Extension. The parties hereto hereby confirm and agree that, as of the Seventh Amendment Date, the Revolving Period is extended to, and therefore the Term Conversion Date shall be, May 31, 2021; provided that: |
| (a) | on March 4, 2020, the Revolving Period shall end, without further action by the Agent or any of the Lenders, if: |
| (i) | the maturity date of all Existing Notes due March 16, 2020, May 29, 2020 and December 2, 2020 shall not be extended to be a date no earlier than November 30, 2021 pursuant to amending agreements to such Existing Notes, each in form and substance satisfactory to the Agent and each of the Lenders, each in their sole and absolute discretion, and the Agent and the Lenders shall have received an officer’s certificate of the Borrower attaching certified true and complete copies of such amending agreements; |
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| (ii) | there have not been amendments to the note purchase agreements governing the outstanding Existing Notes to provide for, and otherwise permit, True-Up Payments in accordance with the True-Up Application, each such amending agreement to the note purchase agreements being in form and substance satisfactory to the Agent and each of the Lenders, each in their sole and absolute discretion, and the Agent and the Lenders shall have received an officer’s certificate of the Borrower attaching certified true and complete copies of such amending agreements; |
| (iii) | any other amendments have been made to the terms of the Existing Notes without the prior written agreement of the Agent and each of the Lenders, each in their sole and absolute discretion; |
| (iv) | any fee or other compensation is paid or payable to any of the holders of the Existing Notes in respect of the aforementioned extension of the maturity dates thereof in excess (on a proportionate basis) of the extension fee payable to the Lenders, as contemplated herein and the Agent and the Lenders shall have received an officer’s certificate of the Borrower certifying the same; |
| (v) | the Borrower has not concluded and entered into definitive documentation with its landlord, Degi Homburg Harris Limited Partnership (together with its successors and assigns, the “Landlord”), in respect of: (A) a reduction of the net rent payable under the amended and restated lease agreement dated as of April 15, 2008 between the Borrower and the Landlord (as amended and supplemented to the date hereof, the “Office Lease”) to an aggregate amount not to exceed (x) Cdn.$10,000,000 per annum for each calendar year from 2020 through to and including 2024 and (y) Cdn.$833,333 in the 2025 calendar year; and (B) an indemnity in respect of the existing subleases of the Office Lease, such definitive documentation in form and substance satisfactory to the Agent and each of the Lenders, each in their sole and absolute discretion, and the Agent and the Lenders shall have received an officer’s certificate of the Borrower attaching certified true and complete copies of such definitive documentation; or |
| (vi) | the Intercreditor Agreement has not been amended to provide for, and otherwise recognize as between the holders of Secured Obligations (under and as defined in the Intercreditor Agreement) True-Up Payments in accordance with the True-Up Application whether prior to or after the occurrence of any Enforcement Action (as defined in the Intercreditor Agreement); provided that, for purposes of section 9(a) of the Intercreditor Agreement such True-Up Application shall amend the distributions contemplated by the paragraph beginning with “SECOND:”, such amending agreement to the Intercreditor Agreement in form and substance satisfactory to the Agent and each of the Lenders, each in their sole and absolute discretion; and |
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| (b) | if any one of the Lenders, in its sole and absolute discretion, provides notice to the Agent and the Borrower in writing on or before June 22, 2020 that the Revolving Period shall end, and therefore the Term Conversion Date shall be, June 30, 2020, then the Revolving Period shall be deemed to end on, and the Term Conversion Date shall be, June 30, 2020 for all purposes hereof and of the other Documents and without the requirement for any step or action whatsoever. |
Notwithstanding the foregoing extension set forth in this Section 2 of this Agreement or the definition of “Term Period” set forth in the Credit Agreement, the last day of the Term Period shall be November 30, 2021; provided that, if the Revolving Period shall, at any time, end on or before June 30, 2020 pursuant to the foregoing, then the last day of the Term Period shall be April 1, 2021.
| 3. | May 2020 Borrowing Base Date. The parties hereto hereby agree that the determination of the Borrowing Base that is scheduled to occur by May 31, 2020 in accordance with Section 3.10(b) of the Credit Agreement shall not proceed. The foregoing is neither an affirmation nor redetermination of the current Borrowing Base; however, the previous Borrowing Base of $550,000,000 shall continue to apply for purposes of the limitation on Interest Rate Swap Contracts pursuant to Section 13.2(c)(iii) of the Credit Agreement until the Borrowing Base is redetermined by the Lenders. For certainty, the next scheduled determination of the Borrowing Base is to occur on or before November 30, 2020 in accordance with Section 3.10(b) of the Credit Agreement. |
| 4. | Removal of Additional Borrowing Base Determination under Sixth Amending Agreement. Effective as of the Seventh Amendment Date, the Sixth Amending Agreement is hereby amended to delete section 4 thereof in its entirety and to substitute therefor “[Intentionally Removed]”. |
| 5. | Additional Borrowing Base Determination. The parties hereto hereby confirm, acknowledge and agree that, in addition to the determinations of the Borrowing Base set forth in Section 3.10(b) of the Credit Agreement, the Lenders may make an additional determination of the Borrowing Base on either: |
| (a) | March 4, 2020, if the Revolving Period ends thereon; or |
| (b) | June 30, 2020, if the Revolving Period ends thereon |
| (either | of the foregoing, an “Additional Borrowing Base Determination”). |
The Additional Borrowing Base Determination shall proceed on either March 4, 2020 or June 30, 2020, as the case may be, unless all of the Lenders agree otherwise. The provisions of Section 3.10 of the Credit Agreement shall apply to each Additional Borrowing Base Determination in all respects. For certainty, the Additional Borrowing Base Determinations shall not constitute a Borrowing Base Determination pursuant to Section 3.10(b)(i) of the Credit Agreement.
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| 6. | No Obligation to Determine the Borrowing Base. Notwithstanding anything herein, in the Credit Agreement or in the other Documents to the contrary, all of the Lenders may defer or suspend any Borrowing Base Determination (including on or in respect of any Scheduled Borrowing Base Date) otherwise required or contemplated thereby in their sole discretion and shall not be obligated to make any such determination if they have so exercised their discretion. |
| 7. | Reductions in Commitment Amount. Notwithstanding anything in the Credit Agreement to the contrary, the parties hereto hereby covenant and agree that on the Seventh Amendment Date, the Commitment Amount shall be permanently reduced to Cdn.$450,000,000. Concurrent with such reduction, a corresponding pro rata permanent reduction shall be made in the Individual Commitment Amount of each Lender. Any such pro rata reduction by RBC shall be applied first as against its Individual Syndicated Facility Commitment Amount. Schedule B to the Credit Agreement is hereby deleted in its entirety and replaced with Schedule A attached hereto, inter alia, to provide that the Syndicated Facility Commitment of each Lender shall be the amount set forth opposite its name on such new Schedule B. |
| 8. | Prepayments of Existing Notes and Aggregate Principal Amount. Notwithstanding any provision in the Credit Agreement or any other Document to the contrary, any amount required to be applied by the Borrower or any Subsidiary thereof for permanent repayments or prepayments, as the case may be, of the Aggregate Principal Amount under the Credit Facilities and permanent reductions of the Commitment Amount after the Seventh Amendment Date, whether voluntary or through mandatory application of asset disposition proceeds, shall be a True-Up Payment and shall be made to the Administrative Agent and/or the applicable holders of the Existing Notes, as the case may be, in accordance with the True-Up Application, and, for certainty, any such repayment or prepayment of the Aggregate Principal Amount shall result in an automatic and corresponding dollar-for-dollar permanent reduction in the Commitment Amount. |
| 9. | Restrictions on Drawdowns of, Rollovers of, and Conversions into Bankers’ Acceptances. |
| (a) | From and after the Seventh Amendment Date and notwithstanding any provision to the contrary in the Credit Agreement, the Borrower shall not request, and the Borrower shall not be entitled to make, have or effect: |
| (i) | any Advances by way of Bankers’ Acceptances (or BA Equivalent Loans); |
| (ii) | any Rollover of any outstanding Bankers’ Acceptances (or BA Equivalent Loans); and |
| (iii) | any Conversion of any outstanding Advances into a Bankers’ Acceptance (or BA Equivalent Loan), |
in each of the foregoing cases, which have a term to maturity of more than 1 month.
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| (b) | Notwithstanding any provision in the Credit Agreement to the contrary, Bankers’ Acceptances and BA Equivalent Loans shall only be available during the Revolving Period and shall not be available during the Term Period; and, from and after the Term Conversion Date, any outstanding Bankers’ Acceptances and BA Equivalent Loans shall, upon maturity date thereof, be automatically converted into Canadian Prime Rate Loans. |
| 10. | Amendments to Credit Agreement. Effective as of the Seventh Amendment Date, the Credit Agreement is hereby amended as follows: |
| (a) | Section 3.10(b)(ii) of the Credit Agreement is hereby amended by deleting “exceeds 5% of the then applicable Borrowing Base” and substituting therefor “exceeds the Threshold Amount”. |
| (b) | Section 13.1(e)(x) of the Credit Agreement is hereby amended by adding the following new paragraph to the end thereof: |
| [REDACTED] |
| (c) | Section 13.2 of the Credit Agreement is hereby amended by adding the following new subparagraph (p) immediately following the existing subparagraph (o) thereof, as follows: |
| “(p) | No Acquisition of Petroleum and Natural Gas Rights. The Borrower will not, and will not permit any of its Subsidiaries to, without the prior written consent of the Majority Lenders, purchase, acquire, lease, have assigned to any of them, assume the obligations in respect of, or be granted or have created in favour of any of them any in rem right or interest in, to or against, any P&NG Rights, by whatever means effected, other than those existing as of the date hereof and other than: (a) pursuant to binding obligations of the Borrower and its Subsidiaries existing prior to February 12, 2020; or (b) the purchase, acquisition, leasing, assignment, assumption, granting, creation of P&NG Rights which have, in the aggregate, uninflated and undiscounted asset retirement obligations associated therewith of less than Cdn. $5,000,000.” |
| (d) | The definition of “Threshold Amount” in Schedule A of the Credit Agreement is hereby deleted in its entirety and the following is substituted therefor. |
“Threshold Amount” means Cdn.$15,000,000 or the Canadian Dollar Exchange Equivalent thereof in any other currency; provided that, with respect to the determination of the Threshold Amount referred to (a) in Section 3.10(b)(ii) and (b) under subparagraph (d) of the definition of Permitted Dispositions, the aggregate amount thereunder shall be reset to zero as at February 28, 2020.
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| 11. | Additional Events of Default. In addition to and without derogating from, limiting or otherwise affecting in any manner the other provisions of the Credit Agreement, the parties hereto agree that if there is a breach or failure by the Borrower to comply with or perform its obligations under Section 13(b) of this Seventh Amending Agreement, then such breach or failure shall constitute, and shall be deemed to constitute, an immediate Event of Default under the Credit Agreement and the other Documents for all purposes thereof. |
| 12. | Conditions Precedent. This Seventh Amending Agreement is only effective upon and is subject to the satisfaction of the following conditions precedent: |
| (a) | the accuracy and completeness in all respects of the Borrower’s representations and warranties in Section 14 hereof; and |
| (b) | payment to the Agent (on behalf of the Lenders) of the fee required pursuant to Section 13(a) hereof. |
The foregoing conditions precedent are for the sole benefit of the Agent and the Lenders and may be waived, in whole or in part and with or without further conditions, in the sole discretion of the Agent and the Lenders.
| 13. | Fees. The Borrower agrees to pay to the Agent, on account of the Lenders, the following extension fees in connection with the extension of the Revolving Period contemplated hereby: |
| (a) | a fee being in an amount in Canadian Dollars equal to [REDACTED] bps of the Commitment Amount, payable concurrently with the execution and delivery of this Seventh Amending Agreement; and |
| (b) | a fee being in an amount in Canadian Dollars equal to [REDACTED] bps of the Commitment Amount (for certainty, as in effect as at the Seventh Amendment Date), payable on June 30, 2020 unless the Lenders have elected to end the Revolving Period on or prior to June 30, 2020. |
| 14. | Representations and Warranties. To confirm each Lender’s understanding concerning the Borrower and its business, properties and obligations, and to induce the Agent and each Lender to enter into this Seventh Amending Agreement, the Borrower hereby reaffirms to the Agent and each Lender that, as of the Seventh Amendment Date, its representations and warranties contained in Section 12.1 of the Credit Agreement, as amended by this Seventh Amending Agreement, and except to the extent such representations and warranties relate solely to an earlier date, are true and correct in all material respects and additionally represents and warrants as follows on the Seventh Amendment Date: |
| (a) | it has full corporate power and capacity to enter into this Seventh Amending Agreement and to perform its obligations under the Credit Agreement, as amended by this Seventh Amending Agreement; |
| (b) | this Seventh Amending Agreement, and the performance by it of its obligations under the Credit Agreement, as amended by this Seventh Amending Agreement: |
| (i) | have been duly authorized, executed and delivered by it; and |
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| (ii) | do not conflict with or contravene or constitute a default or create a Lien, other than a conflict, contravention, default or Lien which would not reasonably be expected to have a Material Adverse Effect or a Lien which is a Permitted Encumbrance, under: |
| (A) | its constating documents, by-laws, any resolution of its Directors or any shareholders’ or partnership agreement in respect of the Borrower; |
| (B) | any agreement or document to which it is a party or by which any of its property is bound; or |
| (C) | any applicable Law; |
| (c) | the Credit Agreement, as amended by this Seventh Amending Agreement, constitutes a valid and binding obligation of the Borrower, and is enforceable against the Borrower in accordance with the terms thereof, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, or similar statutes affecting the enforcement of creditors’ rights generally and by general principles of equity; and |
| (d) | no Default or Event of Default has occurred and is continuing. |
| 15. | Continuing Effect. Each of the parties hereto acknowledges and agrees that the Amended Credit Agreement and all other documents entered into in connection therewith, will be and continue in full force and effect and are hereby confirmed and the rights and obligations of all parties thereunder will not be affected or prejudiced in any manner except as specifically provided herein. The Borrower hereby further acknowledges and agrees that all Security granted by it to the Agent for its own benefit and on behalf of the Lender Secured Parties and others in connection with the Credit Agreement and any other documents executed and delivered pursuant thereto or in connection therewith, including confirmations and acknowledgements thereof, continue in full force and effect, without in any way impairing or derogating from any of the mortgages, pledges, charges, assignments, security interests and covenants therein contained or thereby constituted, as continuing security for all indebtedness, liabilities and other obligations of the Borrower under the Amended Credit Agreement and each other Document to which it is a party. |
| 16. | Expenses. The Borrower will pay or reimburse the Agent and the Lenders, as applicable, for the reasonable out of pocket expenses, including reasonable legal fees and disbursements (on a solicitor and his own client full indemnity basis) and enforcement costs, incurred by the Agent and the Lenders, as applicable, in connection with the negotiation, preparation, execution and maintenance of the Amended Credit Agreement and of this Seventh Amending Agreement. |
| 17. | Schedule. The following Schedule is annexed hereto and is incorporated by reference and deemed to be part hereof: |
Schedule A – Commitment Amounts.
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| 18. | Counterparts. This Seventh Amending Agreement may be executed in any number of counterparts (including by facsimile or other electronic transmission), each of which when executed and delivered will be deemed to be an original, but all of which when taken together constitutes one and the same instrument. Any party hereto may execute this Seventh Amending Agreement by signing any counterpart. |
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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THIS SEVENTH AMENDING AGREEMENT has been executed effective the date first written above.
| OBSIDIAN ENERGY LTD., as Borrower | ||
| By: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief | ||
| Financial Officer | ||
[Seventh Amending Agreement – Obsidian]
| ROYAL BANK OF CANADA, as Agent on behalf of the Lenders | ||
| By: |
(signed) [Name Redacted] | |
| Name: |
[Name Redacted] | |
| Title: |
Manager, Agency | |
| By: |
| |
| Name: |
||
| Title: |
||
[Seventh Amending Agreement – Obsidian]
| ROYAL BANK OF CANADA, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: |
[Name Redacted] | |
| Title: |
Attorney-in-Fact | |
| By: |
| |
| Name: |
||
| Title: |
||
[Seventh Amending Agreement – Obsidian]
| THE BANK OF NOVA SCOTIA, as Lender | ||||
| By: |
(signed) [Name Redacted] | |||
| Name: |
[Name Redacted] | |||
| Title: |
Director | |||
| By: |
(signed) [Name Redacted] | |||
| Name: |
[Name Redacted] | |||
| Title: |
Senior Manager | |||
[Seventh Amending Agreement – Obsidian]
| BANK OF MONTREAL, as Lender | ||||
| By: |
(signed) [Name Redacted] | |||
| Name: |
[Name Redacted] | |||
| Title: |
Managing Director | |||
| By: |
| |||
| Name: |
||||
| Title: |
||||
[Seventh Amending Agreement – Obsidian]
| CANADIAN IMPERIAL BANK OF | ||||
| COMMERCE, as Lender | ||||
| By: |
(signed) [Name Redacted] | |||
| Name: |
[Name Redacted] | |||
| Title: |
Senior Director | |||
| By: |
(signed) [Name Redacted] | |||
| Name: |
[Name Redacted] | |||
| Title: |
Senior Account Manager | |||
[Seventh Amending Agreement – Obsidian]
| EXPORT DEVELOPMENT CANADA, as Lender | ||||
| By: |
(signed) [Name Redacted] | |||
| Name: |
[Name Redacted] | |||
| Title: |
Senior Associate | |||
| Structured and Project Finance | ||||
| By: |
(signed) [Name Redacted] | |||
| Name: |
[Name Redacted] | |||
| Title: |
Senior Associate | |||
| Structured and Project Finance | ||||
[Seventh Amending Agreement – Obsidian]
| ATB FINANCIAL, as Lender | ||||
| By: |
(signed) [Name Redacted] | |||
| Name: |
[Name Redacted] | |||
| Title: |
Senior Director | |||
| Corporate Financial Services | ||||
| By: |
(signed) [Name Redacted] | |||
| Name: |
[Name Redacted] | |||
| Title: |
Associate Director | |||
[Seventh Amending Agreement – Obsidian]
| FÉDÉRATION DES CAISSES DESJARDINS DU QUÉBEC, as Lender | ||||
| By: |
(signed) [Name Redacted] | |||
| Name: |
[Name Redacted] | |||
| Title: |
Director | |||
| By: |
(signed) [Name Redacted] | |||
| Name: |
[Name Redacted] | |||
| Title: |
Managing Director | |||
[Seventh Amending Agreement – Obsidian]
| NATIONAL BANK OF CANADA, as Lender | ||||
| By: |
(signed) [Name Redacted] | |||
| Name: |
[Name Redacted] | |||
| Title: |
Senior Manager, Special Loans | |||
| By: |
(signed) [Name Redacted] | |||
| Name: |
[Name Redacted] | |||
| Title: |
Senior Manager, Special Loans | |||
[Seventh Amending Agreement – Obsidian]
| BUSINESS DEVELOPMENT BANK OF CANADA, as Lender | ||||
| By: |
(signed) [Name Redacted] | |||
| Name: |
[Name Redacted] | |||
| Title: |
Director | |||
| By: |
(signed) [Name Redacted] | |||
| Name: |
[Name Redacted] | |||
| Title: |
Assistant Vice-President | |||
| Business Restructuring | ||||
[Seventh Amending Agreement – Obsidian]
ACKNOWLEDGEMENT:
Obsidian Energy Ltd. (by its former name, Penn West Petroleum Ltd.), 1647456 Alberta Ltd., Penn West Northern Harrier Partnership, Obsidian Energy Partnership (by its former name, Penn West Petroleum), Penn West PROP Holdco Ltd., Penn West PROP Limited Partnership and Penn West Sandhill Crane Ltd. (each a “Guarantor”, and collectively, the “Guarantors”) each hereby acknowledge and consent to the Seventh Amending Agreement and acknowledge, agree and confirm that the guarantee dated May 18, 2017 (the “Guarantee”), provided by the Guarantors for the benefit of the Lender Secured Parties, and all representations, warranties, covenants and other obligations set forth therein are binding on the Guarantors and continue in full force and effect as a guarantee of all of the Lender Secured Obligations. Each Guarantor hereby restates the terms set forth in the Guarantee to the extent necessary under applicable Law to give effect to the foregoing. The Guarantors hereby further acknowledge and agree that all Security granted by each of the Guarantors to the Agent on behalf of the Lender Secured Parties and others in connection with the Guarantee, the Credit Agreement and any other documents executed and delivered pursuant thereto or in connection therewith, continue in full force and effect, without in any way impairing or derogating from any of the mortgages, pledges, charges, assignments, security for all indebtedness, liabilities and other obligations of the undersigned.
Acknowledged as of the Seventh Amendment Date.
| OBSIDIAN ENERGY LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief | ||
| Financial Officer | ||
[Seventh Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST NORTHERN HARRIER | ||
| PARTNERSHIP, by its managing partner, | ||
| PENN WEST SANDHILL CRANE LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Seventh Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| OBSIDIAN ENERGY PARTNERSHIP, by its managing partner, OBSIDIAN ENERGY LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief | ||
| Financial Officer | ||
[Seventh Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST PROP HOLDCO LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Seventh Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST PROP LIMITED | ||
| PARTNERSHIP, by its general partner, | ||
| PENN WEST PROP HOLDCO LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Seventh Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST SANDHILL CRANE LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Seventh Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| 1647456 ALBERTA LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Seventh Amending Agreement – Obsidian (Guarantor Acknowledgment)]
SCHEDULE A
SCHEDULE B
OBSIDIAN ENERGY LTD.
AMENDED AND RESTATED CREDIT AGREEMENT
DATED MAY 18, 2017
COMMITMENT AMOUNTS
| LENDER |
OPERATING FACILITY COMMITMENT AMOUNT |
INDIVIDUAL SYNDICATED FACILITY COMMITMENT AMOUNT |
INDIVIDUAL COMMITMENT AMOUNT |
|||||||||
| Royal Bank of Canada |
[REDACTED | ] | [REDACTED | ] | [REDACTED | ] | ||||||
| The Bank of Nova Scotia |
[REDACTED | ] | [REDACTED | ] | [REDACTED | ] | ||||||
| Bank of Montreal |
[REDACTED | ] | [REDACTED | ] | [REDACTED | ] | ||||||
| Canadian Imperial Bank of Commerce |
[REDACTED | ] | [REDACTED | ] | [REDACTED | ] | ||||||
| Export Development Canada |
[REDACTED | ] | [REDACTED | ] | [REDACTED | ] | ||||||
| ATB Financial |
[REDACTED | ] | [REDACTED | ] | [REDACTED | ] | ||||||
| Fédération des caisses Desjardins du Québec |
[REDACTED | ] | [REDACTED | ] | [REDACTED | ] | ||||||
| National Bank of Canada |
[REDACTED | ] | [REDACTED | ] | [REDACTED | ] | ||||||
| Business Development Bank of Canada |
[REDACTED | ] | [REDACTED | ] | [REDACTED | ] | ||||||
| Total |
$ | 50,000,000 | $ | 400,000,000 | $ | 450,000,000 | ||||||
Exhibit 99.2
Redacted Version
EIGHTH AMENDING AGREEMENT
TO THE OBSIDIAN ENERGY LTD.
AMENDED AND RESTATED CREDIT AGREEMENT
THIS EIGHTH AMENDING AGREEMENT is made effective as of March 4, 2020 (the “Eighth Amendment Date”),
BETWEEN:
OBSIDIAN ENERGY LTD.
as Borrower
- and -
ROYAL BANK OF CANADA,
THE BANK OF NOVA SCOTIA,
BANK OF MONTREAL,
CANADIAN IMPERIAL BANK OF COMMERCE,
EXPORT DEVELOPMENT CANADA,
ATB FINANCIAL,
FÉDÉRATION DES CAISSES DESJARDINS DU QUÉBEC,
NATIONAL BANK OF CANADA, and
BUSINESS DEVELOPMENT BANK OF CANADA
as Lenders
- and -
ROYAL BANK OF CANADA
as Administrative Agent on behalf of the Lenders
PREAMBLE:
| A. | Pursuant to the Amended and Restated Credit Agreement dated May 18, 2017 as amended by a first amending agreement dated May 10, 2018, a second amending agreement dated December 14, 2018, a third amending agreement dated March 21, 2019, a fourth amending agreement dated May 31, 2019, a fifth amending agreement made effective as of June 28, 2019, a sixth amending agreement made effective as of August 12, 2019 and a seventh amending agreement (the “Seventh Amending Agreement”) made effective as of February 28, 2020 (as so amended, the “Credit Agreement”), among Obsidian Energy Ltd. (by its former name, Penn West Petroleum Ltd.), as borrower (the “Borrower”), Royal Bank of Canada (“RBC”) and each of the other financial institutions party thereto, as lenders, and RBC, as administrative agent (the “Agent”), the Lenders agreed to provide to the Borrower the Credit Facilities. |
| B. | The Parties wish to amend the Seventh Amending Agreement on the terms and conditions herein provided. |
AGREEMENT:
NOW THEREFORE in consideration of the premises, the covenants and the agreements herein contained, the Parties agree as follows:
| 1. | Definitions. Capitalized terms used in this Eighth Amending Agreement will, unless otherwise defined herein, have the meanings attributed to such terms in the Credit Agreement, as amended hereby (the “Amended Credit Agreement”). |
| 2. | Amendments to Seventh Agreement. Effective as of the Eighth Amendment Date, the Seventh Amending Agreement is hereby amended as follows: |
| (a) | Section 2(a) of the Seventh Amending Agreement is hereby amended by deleting “March 4, 2020” and substituting therefor “March 13, 2020”; and |
| (b) | Section 5 of the Seventh Amending Agreement is hereby amended by deleting each reference to “March 4, 2020” and, in each case, substituting therefor “March 13, 2020”. |
| 3. | Condition Precedent. This Eighth Amending Agreement is only effective upon and is subject to the accuracy and completeness in all respects of the Borrower’s representations and warranties in Section 4 hereof. The foregoing condition precedent is for the sole benefit of the Agent and the Lenders and may be waived, in whole or in part and with or without further conditions, in the sole discretion of the Agent and the Lenders. |
| 4. | Representations and Warranties. To confirm each Lender’s understanding concerning the Borrower and its business, properties and obligations, and to induce the Agent and each Lender to enter into this Eighth Amending Agreement, the Borrower hereby reaffirms to the Agent and each Lender that, as of the Eighth Amendment Date, its representations and warranties contained in Section 12.1 of the Credit Agreement, as amended by this Eighth Amending Agreement, and except to the extent such representations and warranties relate solely to an earlier date, are true and correct in all material respects and additionally represents and warrants as follows on the Eighth Amendment Date: |
| (a) | it has full corporate power and capacity to enter into this Eighth Amending Agreement and to perform its obligations under the Credit Agreement, as amended by this Eighth Amending Agreement; |
| (b) | this Eighth Amending Agreement, and the performance by it of its obligations under the Credit Agreement, as amended by this Eighth Amending Agreement: |
| (i) | have been duly authorized, executed and delivered by it; and |
| (ii) | do not conflict with or contravene or constitute a default or create a Lien, other than a conflict, contravention, default or Lien which would not reasonably be expected to have a Material Adverse Effect or a Lien which is a Permitted Encumbrance, under: |
- 2 -
| (A) | its constating documents, by-laws, any resolution of its Directors or any shareholders’ or partnership agreement in respect of the Borrower; |
| (B) | any agreement or document to which it is a party or by which any of its property is bound; or |
| (C) | any applicable Law; |
| (c) | the Credit Agreement, as amended by this Eighth Amending Agreement, and the Seventh Amending Agreement, as amended by this Eighth Amending Agreement, each constitutes a valid and binding obligation of the Borrower, and is enforceable against the Borrower in accordance with the terms thereof, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, or similar statutes affecting the enforcement of creditors’ rights generally and by general principles of equity; and |
| (d) | no Default or Event of Default has occurred and is continuing. |
| 5. | Continuing Effect. Each of the parties hereto acknowledges and agrees that the Amended Credit Agreement (including the Seventh Amending Agreement) and all other documents entered into in connection therewith, will be and continue in full force and effect and are hereby confirmed and the rights and obligations of all parties thereunder will not be affected or prejudiced in any manner except as specifically provided herein. The Borrower hereby further acknowledges and agrees that all Security granted by it to the Agent for its own benefit and on behalf of the Lender Secured Parties and others in connection with the Credit Agreement (including the Seventh Amending Agreement) and any other documents executed and delivered pursuant thereto or in connection therewith, including confirmations and acknowledgements thereof, continue in full force and effect, without in any way impairing or derogating from any of the mortgages, pledges, charges, assignments, security interests and covenants therein contained or thereby constituted, as continuing security for all indebtedness, liabilities and other obligations of the Borrower under the Amended Credit Agreement and each other Document to which it is a party. |
| 6. | Expenses. The Borrower will pay or reimburse the Agent and the Lenders, as applicable, for the reasonable out of pocket expenses, including reasonable legal fees and disbursements (on a solicitor and his own client full indemnity basis) and enforcement costs, incurred by the Agent and the Lenders, as applicable, in connection with the negotiation, preparation, execution and maintenance of the Amended Credit Agreement and of this Eighth Amending Agreement. |
| 7. | Counterparts. This Eighth Amending Agreement may be executed in any number of counterparts (including by facsimile or other electronic transmission), each of which when executed and delivered will be deemed to be an original, but all of which when taken together constitutes one and the same instrument. Any party hereto may execute this Eighth Amending Agreement by signing any counterpart. |
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
- 3 -
THIS EIGHTH AMENDING AGREEMENT has been executed effective the date first written above.
| OBSIDIAN ENERGY LTD., as Borrower | ||
| By: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief | ||
| Financial Officer | ||
[Eighth Amending Agreement – Obsidian]
| ROYAL BANK OF CANADA, as Agent on behalf of the Lenders | ||
| By: |
(signed) [Name Redacted] | |
| Name: |
[Name Redacted] | |
| Title: |
Manager, Agency | |
| By: |
| |
| Name: |
||
| Title: |
||
[Eighth Amending Agreement – Obsidian]
| ROYAL BANK OF CANADA, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: |
[Name Redacted] | |
| Title: |
Authorized Signatory | |
| By: |
| |
| Name: |
||
| Title: |
||
[Eighth Amending Agreement – Obsidian]
| THE BANK OF NOVA SCOTIA, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Director | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Manager | ||
[Eighth Amending Agreement – Obsidian]
| BANK OF MONTREAL, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Managing Director | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Eighth Amending Agreement – Obsidian]
| CANADIAN IMPERIAL BANK OF COMMERCE, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Director | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Account Manager | ||
[Eighth Amending Agreement – Obsidian]
| EXPORT DEVELOPMENT CANADA, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Special Risk Manager | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Special Risk Manager | ||
[Eighth Amending Agreement – Obsidian]
| ATB FINANCIAL, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Director | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Associate Director | ||
[Eighth Amending Agreement – Obsidian]
| FÉDÉRATION DES CAISSES DESJARDINS DU QUÉBEC, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Manager | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Eighth Amending Agreement – Obsidian]
| NATIONAL BANK OF CANADA, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Manager | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Manager | ||
[Eighth Amending Agreement – Obsidian]
| BUSINESS DEVELOPMENT BANK OF CANADA, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Assistant Vice-President | ||
| Business Restructuring | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Director | ||
[Eighth Amending Agreement – Obsidian]
ACKNOWLEDGEMENT:
Obsidian Energy Ltd. (by its former name, Penn West Petroleum Ltd.), 1647456 Alberta Ltd., Penn West Northern Harrier Partnership, Obsidian Energy Partnership (by its former name, Penn West Petroleum), Penn West PROP Holdco Ltd., Penn West PROP Limited Partnership and Penn West Sandhill Crane Ltd. (each a “ Guarantor”, and collectively, the “Guarantors”) each hereby acknowledge and consent to the Eighth Amending Agreement and acknowledge, agree and confirm that the guarantee dated May 18, 2017 (the “Guarantee”), provided by the Guarantors for the benefit of the Lender Secured Parties, and all representations, warranties, covenants and other obligations set forth therein are binding on the Guarantors and continue in full force and effect as a guarantee of all of the Lender Secured Obligations. Each Guarantor hereby restates the terms set forth in the Guarantee to the extent necessary under applicable Law to give effect to the foregoing. The Guarantors hereby further acknowledge and agree that all Security granted by each of the Guarantors to the Agent on behalf of the Lender Secured Parties and others in connection with the Guarantee, the Credit Agreement and any other documents executed and delivered pursuant thereto or in connection therewith, continue in full force and effect, without in any way impairing or derogating from any of the mortgages, pledges, charges, assignments, security for all indebtedness, liabilities and other obligations of the undersigned.
Acknowledged as of the Eighth Amendment Date.
| OBSIDIAN ENERGY LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief | ||
| Financial Officer | ||
| PENN WEST NORTHERN HARRIER | ||
| PARTNERSHIP, by its managing partner, | ||
| PENN WEST SANDHILL CRANE LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Eighth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| OBSIDIAN ENERGY PARTNERSHIP, by its managing partner, OBSIDIAN ENERGY LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief | ||
| Financial Officer | ||
[Eighth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST PROP HOLDCO LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Eighth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST PROP LIMITED PARTNERSHIP, by its general partner, PENN WEST PROP HOLDCO LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Eighth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST SANDHILL CRANE LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Eighth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| 1647456 ALBERTA LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Eighth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
Exhibit 99.3
Redacted Version
NINTH AMENDING AGREEMENT
TO THE OBSIDIAN ENERGY LTD.
AMENDED AND RESTATED CREDIT AGREEMENT
THIS NINTH AMENDING AGREEMENT is made effective as of March 13, 2020 (the “Ninth Amendment Date”),
BETWEEN:
OBSIDIAN ENERGY LTD.
as Borrower
- and -
ROYAL BANK OF CANADA,
THE BANK OF NOVA SCOTIA,
BANK OF MONTREAL,
CANADIAN IMPERIAL BANK OF COMMERCE,
EXPORT DEVELOPMENT CANADA,
ATB FINANCIAL,
FÉDÉRATION DES CAISSES DESJARDINS DU QUÉBEC,
NATIONAL BANK OF CANADA, and
BUSINESS DEVELOPMENT BANK OF CANADA
as Lenders
- and -
ROYAL BANK OF CANADA
as Administrative Agent on behalf of the Lenders
PREAMBLE:
| A. | Pursuant to the Amended and Restated Credit Agreement dated May 18, 2017 as amended by a first amending agreement dated May 10, 2018, a second amending agreement dated December 14, 2018, a third amending agreement dated March 21, 2019, a fourth amending agreement dated May 31, 2019, a fifth amending agreement made effective as of June 28, 2019, a sixth amending agreement made effective as of August 12, 2019, a seventh amending agreement made effective as of February 28, 2020 (the “Seventh Amending Agreement”) and an eighth amending agreement made effective as of March 4, 2020 (as so amended, the “Credit Agreement”), among Obsidian Energy Ltd. (by its former name, Penn West Petroleum Ltd.), as borrower (the “Borrower”), Royal Bank of Canada (“RBC”) and each of the other financial institutions party thereto, as lenders, and RBC, as administrative agent (the “Agent”), the Lenders agreed to provide to the Borrower the Credit Facilities. |
| B. | The Parties wish to amend the Seventh Amending Agreement on the terms and conditions herein provided. |
AGREEMENT:
NOW THEREFORE in consideration of the premises, the covenants and the agreements herein contained, the Parties agree as follows:
| 1. | Definitions. Capitalized terms used in this Ninth Amending Agreement will, unless otherwise defined herein, have the meanings attributed to such terms in the Credit Agreement, as amended hereby (the “Amended Credit Agreement”). |
| 2. | Amendments to Seventh Agreement. Effective as of the Ninth Amendment Date, the Seventh Amending Agreement is hereby amended as follows: |
| (a) | Section 2(a) of the Seventh Amending Agreement is hereby amended by deleting “March 13, 2020” and substituting therefor “March 31, 2020”; and |
| (b) | Section 5 of the Seventh Amending Agreement is hereby amended by deleting each reference to “March 13, 2020” and, in each case, substituting therefor “March 31, 2020”. |
| 3. | Condition Precedent. This Ninth Amending Agreement is only effective upon and is subject to the satisfaction of the following conditions precedent: |
| (a) | [REDACTED]; |
| (b) | accuracy and completeness in all respects of the Borrower’s representations and warranties in Section 4 hereof. |
The foregoing conditions precedent are for the sole benefit of the Agent and the Lenders and may be waived, in whole or in part and with or without further conditions, in the sole discretion of the Agent and the Lenders.
| 4. | Representations and Warranties. To confirm each Lender’s understanding concerning the Borrower and its business, properties and obligations, and to induce the Agent and each Lender to enter into this Ninth Amending Agreement, the Borrower hereby reaffirms to the Agent and each Lender that, as of the Ninth Amendment Date, its representations and warranties contained in Section 12.1 of the Credit Agreement, as amended by this Ninth Amending Agreement, and except to the extent such representations and warranties relate solely to an earlier date, are true and correct in all material respects and additionally represents and warrants as follows on the Ninth Amendment Date: |
| (a) | it has full corporate power and capacity to enter into this Ninth Amending Agreement and to perform its obligations under the Credit Agreement, as amended by this Ninth Amending Agreement; |
| (b) | this Ninth Amending Agreement, and the performance by it of its obligations under the Credit Agreement, as amended by this Ninth Amending Agreement: |
| (i) | have been duly authorized, executed and delivered by it; and |
- 2 -
| (ii) | do not conflict with or contravene or constitute a default or create a Lien, other than a conflict, contravention, default or Lien which would not reasonably be expected to have a Material Adverse Effect or a Lien which is a Permitted Encumbrance, under: |
| (A) | its constating documents, by-laws, any resolution of its Directors or any shareholders’ or partnership agreement in respect of the Borrower; |
| (B) | any agreement or document to which it is a party or by which any of its property is bound; or |
| (C) | any applicable Law; |
| (c) | the Credit Agreement, as amended by this Ninth Amending Agreement, and the Seventh Amending Agreement, as amended by this Ninth Amending Agreement, each constitutes a valid and binding obligation of the Borrower, and is enforceable against the Borrower in accordance with the terms thereof, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, or similar statutes affecting the enforcement of creditors’ rights generally and by general principles of equity; and |
| (d) | no Default or Event of Default has occurred and is continuing. |
| 5. | Continuing Effect. Each of the parties hereto acknowledges and agrees that the Amended Credit Agreement (including the Seventh Amending Agreement) and all other documents entered into in connection therewith, will be and continue in full force and effect and are hereby confirmed and the rights and obligations of all parties thereunder will not be affected or prejudiced in any manner except as specifically provided herein. The Borrower hereby further acknowledges and agrees that all Security granted by it to the Agent for its own benefit and on behalf of the Lender Secured Parties and others in connection with the Credit Agreement (including the Seventh Amending Agreement) and any other documents executed and delivered pursuant thereto or in connection therewith, including confirmations and acknowledgements thereof, continue in full force and effect, without in any way impairing or derogating from any of the mortgages, pledges, charges, assignments, security interests and covenants therein contained or thereby constituted, as continuing security for all indebtedness, liabilities and other obligations of the Borrower under the Amended Credit Agreement and each other Document to which it is a party. |
| 6. | Expenses. The Borrower will pay or reimburse the Agent and the Lenders, as applicable, for the reasonable out of pocket expenses, including reasonable legal fees and disbursements (on a solicitor and his own client full indemnity basis) and enforcement costs, incurred by the Agent and the Lenders, as applicable, in connection with the negotiation, preparation, execution and maintenance of the Amended Credit Agreement and of this Ninth Amending Agreement. |
- 3 -
| 7. | Counterparts. This Ninth Amending Agreement may be executed in any number of counterparts (including by facsimile or other electronic transmission), each of which when executed and delivered will be deemed to be an original, but all of which when taken together constitutes one and the same instrument. Any party hereto may execute this Ninth Amending Agreement by signing any counterpart. |
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
- 4 -
THIS NINTH AMENDING AGREEMENT has been executed effective the date first written above.
| OBSIDIAN ENERGY LTD., as Borrower | ||
| By: | (signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief | ||
| Financial Officer | ||
[Ninth Amending Agreement – Obsidian]
| ROYAL BANK OF CANADA, as Agent on behalf of the Lenders | ||
| By: | (signed) [Name Redacted] | |
| Name: | [Name Redacted] | |
| Title: | Manager, Agency | |
| By: |
| |
| Name: | ||
| Title: | ||
[Ninth Amending Agreement – Obsidian]
| ROYAL BANK OF CANADA, as Lender | ||
| By: | (signed) [Name Redacted] | |
| Name: | [Name Redacted] | |
| Title: | Authorized Signatory | |
| By: |
| |
| Name: | ||
| Title: | ||
[Ninth Amending Agreement – Obsidian]
| THE BANK OF NOVA SCOTIA, as Lender | ||||
| By: | (signed) [Name Redacted] | |||
| Name: | [Name Redacted] | |||
| Title: | Director | |||
| By: | (signed) [Name Redacted] | |||
| Name: | [Name Redacted] | |||
| Title: | Vice President | |||
[Ninth Amending Agreement – Obsidian]
| BANK OF MONTREAL, as Lender | ||||
| By: | (signed) [Name Redacted] | |||
| Name: | [Name Redacted] | |||
| Title: | Managing Director | |||
| By: |
| |||
| Name: | ||||
| Title: | ||||
[Ninth Amending Agreement – Obsidian]
| CANADIAN IMPERIAL BANK OF COMMERCE, as Lender | ||||
| By: | (signed) [Name Redacted] | |||
| Name: | [Name Redacted] | |||
| Title: | Director | |||
| By: | (signed) [Name Redacted] | |||
| Name: | [Name Redacted] | |||
| Title: | Senior Account Manager | |||
[Ninth Amending Agreement – Obsidian]
| EXPORT DEVELOPMENT CANADA, as Lender | ||||
| By: | (signed) [Name Redacted] | |||
| Name: | [Name Redacted] | |||
| Title: | Senior Special Risk Manager | |||
| By: | (signed) [Name Redacted] | |||
| Name: | [Name Redacted] | |||
| Title: | Special Risks Manager | |||
[Ninth Amending Agreement – Obsidian]
| ATB FINANCIAL, as Lender | ||||
| By: | (signed) [Name Redacted] | |||
| Name: | [Name Redacted] | |||
| Title: | Director | |||
| By: | (signed) [Name Redacted] | |||
| Name: | [Name Redacted] | |||
| Title: | Associate Director | |||
[Ninth Amending Agreement – Obsidian]
| FÉDÉRATION DES CAISSES DESJARDINS DU QUÉBEC, as Lender | ||||
| By: | (signed) [Name Redacted] | |||
| Name: | [Name Redacted] | |||
| Title: | Manager | |||
| By: |
| |||
| Name: | ||||
| Title: | ||||
[Ninth Amending Agreement – Obsidian]
| NATIONAL BANK OF CANADA, as Lender | ||||
| By: | (signed) [Name Redacted] | |||
| Name: | [Name Redacted] | |||
| Title: | Senior Manager | |||
| By: | (signed) [Name Redacted] | |||
| Name: | [Name Redacted] | |||
| Title: | Senior Manager | |||
[Ninth Amending Agreement – Obsidian]
| BUSINESS DEVELOPMENT BANK OF CANADA, as Lender | ||||
| By: | (signed) [Name Redacted] | |||
| Name: | [Name Redacted] | |||
| Title: | Assistant Vice-President | |||
| Business Restructuring | ||||
| By: | (signed) [Name Redacted] | |||
| Name: | [Name Redacted] | |||
| Title: | Director | |||
[Ninth Amending Agreement – Obsidian]
ACKNOWLEDGEMENT:
Obsidian Energy Ltd. (by its former name, Penn West Petroleum Ltd.), 1647456 Alberta Ltd., Penn West Northern Harrier Partnership, Obsidian Energy Partnership (by its former name, Penn West Petroleum), Penn West PROP Holdco Ltd., Penn West PROP Limited Partnership and Penn West Sandhill Crane Ltd. (each a “Guarantor”, and collectively, the “Guarantors”) each hereby acknowledge and consent to the Ninth Amending Agreement and acknowledge, agree and confirm that the guarantee dated May 18, 2017 (the “Guarantee”), provided by the Guarantors for the benefit of the Lender Secured Parties, and all representations, warranties, covenants and other obligations set forth therein are binding on the Guarantors and continue in full force and effect as a guarantee of all of the Lender Secured Obligations. Each Guarantor hereby restates the terms set forth in the Guarantee to the extent necessary under applicable Law to give effect to the foregoing. The Guarantors hereby further acknowledge and agree that all Security granted by each of the Guarantors to the Agent on behalf of the Lender Secured Parties and others in connection with the Guarantee, the Credit Agreement and any other documents executed and delivered pursuant thereto or in connection therewith, continue in full force and effect, without in any way impairing or derogating from any of the mortgages, pledges, charges, assignments, security for all indebtedness, liabilities and other obligations of the undersigned.
Acknowledged as of the Ninth Amendment Date.
| OBSIDIAN ENERGY LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief | ||
| Financial Officer | ||
| PENN WEST NORTHERN HARRIER | ||
| PARTNERSHIP, by its managing partner, | ||
| PENN WEST SANDHILL CRANE LTD. | ||
| Per: | (signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Ninth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| OBSIDIAN ENERGY PARTNERSHIP, by its managing partner, OBSIDIAN ENERGY LTD. | ||
| Per: | (signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief | ||
| Financial Officer | ||
[Ninth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST PROP HOLDCO LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Ninth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST PROP LIMITED PARTNERSHIP, by its general partner, PENN WEST PROP HOLDCO LTD. | ||
| Per: | (signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Ninth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST SANDHILL CRANE LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Ninth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| 1647456 ALBERTA LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Ninth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
Exhibit 99.4
Redacted Version
TENTH AMENDING AGREEMENT
TO THE OBSIDIAN ENERGY LTD.
AMENDED AND RESTATED CREDIT AGREEMENT
THIS TENTH AMENDING AGREEMENT is made effective as of March 27, 2020 (the “Tenth Amendment Date”),
BETWEEN:
OBSIDIAN ENERGY LTD.
as Borrower
- and -
ROYAL BANK OF CANADA,
THE BANK OF NOVA SCOTIA,
BANK OF MONTREAL,
CANADIAN IMPERIAL BANK OF COMMERCE,
EXPORT DEVELOPMENT CANADA,
ATB FINANCIAL,
FÉDÉRATION DES CAISSES DESJARDINS DU QUÉBEC,
NATIONAL BANK OF CANADA, and
BUSINESS DEVELOPMENT BANK OF CANADA
as Lenders
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ROYAL BANK OF CANADA
as Administrative Agent on behalf of the Lenders
PREAMBLE:
| A. | Pursuant to the Amended and Restated Credit Agreement dated May 18, 2017 as amended by a first amending agreement dated May 10, 2018, a second amending agreement dated December 14, 2018, a third amending agreement dated March 21, 2019, a fourth amending agreement dated May 31, 2019, a fifth amending agreement made effective as of June 28, 2019, a sixth amending agreement made effective as of August 12, 2019, a seventh amending agreement made effective as of February 28, 2020 (the “Seventh Amending Agreement”), an eighth amending agreement made effective as of March 4, 2020 and a ninth amending agreement made effective as of March 13, 2020 (as so amended, the “Credit Agreement”), among Obsidian Energy Ltd. (by its former name, Penn West Petroleum Ltd.), as borrower (the “Borrower”), Royal Bank of Canada (“RBC”) and each of the other financial institutions party thereto, as lenders, and RBC, as administrative agent (the “Agent”), the Lenders agreed to provide to the Borrower the Credit Facilities. |
| B. | The Parties wish to amend the Credit Agreement and the Seventh Amending Agreement on the terms and conditions herein provided. |
AGREEMENT:
NOW THEREFORE in consideration of the premises, the covenants and the agreements herein contained, the Parties agree as follows:
| 1. | Definitions. Capitalized terms used in this Tenth Amending Agreement will, unless otherwise defined herein, have the meanings attributed to such terms in the Credit Agreement, as amended hereby (the “Amended Credit Agreement”). In addition, for purposes of this Tenth Amending agreement, the following capitalized terms have the following meanings: |
“Aggregate Noteholder Principal Amount” means, as at the date of determination, the Canadian Dollar Exchange Equivalent of the outstanding principal amount of the Existing Notes.
“Bankruptcy or Insolvency” has the meaning attributed to it in the Intercreditor Agreement.
“Control” has the meaning attributed to it in the Intercreditor Agreement.
“Consensual Transaction” means a transaction, whether by amalgamation, merger or otherwise, consented to by the holders of all outstanding Existing Notes, that is consummated outside a Bankruptcy or Insolvency (including, without limitation, a proceeding under the Companies’ Creditors Arrangement Act (Canada), the Canada Business Corporations Act or the Business Corporations Act (Alberta)) and results in (a) a transfer of all or substantially all of the assets of the Borrower and its Subsidiaries to a Person or Persons or (b) Control of the Borrower and its Subsidiaries being transferred to a Person or Persons.
“Crystalized Make-Whole Amount” has the meaning attributed to it in the Intercreditor Agreement.
“February 28 Bank Amount” means [REDACTED].
“February 28 Noteholder Amount” means [REDACTED].
“Lender Protective Claim Amounts” means [REDACTED].
“Make-Whole Amounts” has the meaning attributed to it in the applicable Note Purchase Agreements, as in effect on the date hereof.
“New Hedging Obligations” means, collectively, all of the obligations, indebtedness and liabilities (present or future, absolute or contingent, mature or not) of the Borrower and its Subsidiaries under, pursuant or relating to any and all Hedging Agreements (under and as defined in the Intercreditor Agreement) entered into between a Hedge Provider (under and as defined in the Intercreditor Agreement) and the Borrower or a Subsidiary thereof from and after February 28, 2020.
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“Note Agreements” has the meaning attributed to it in the Intercreditor Agreement.
“Note Agreements Default Rate” means the Default Rate (under and as defined in the applicable Note Purchase Agreements, as in effect on the date hereof).
“Noteholder Protective Claim Amounts” [REDACTED].
“Percentage Share” means:
| (a) | as to the Aggregate Noteholder Principal Amount, the share of such amount as a percentage of the sum of: (i) the Aggregate Noteholder Principal Amount; and (ii) the Canadian Dollar Exchange Equivalent of the Aggregate Principal Amount; and |
| (b) | as to the Aggregate Principal Amount, the share of such amount as a percentage of the sum of: (i) the Aggregate Noteholder Principal Amount; and (ii) the Canadian Dollar Exchange Equivalent of the Aggregate Principal Amount. |
“Secured Obligations” has the meaning attributed to it in the Intercreditor Agreement.
“Triggering Event “ means (a) a Bankruptcy or Insolvency, (b) an acceleration of any of the Existing Notes or an acceleration or term out of Obligations, (c) a sale of all or substantially all of the assets of the Borrower and its Subsidiaries or (d) any transaction whereby the Borrower ceases to be a public company or any Person acquires, directly or indirectly, alone or in concert with other Persons, over a period of time or at any one time, Voting Securities in the capital of the Borrower aggregating in excess of 66 2/3% of all of the then issued and outstanding Voting Securities of the Borrower.
“True-Up Payment” means each permanent repayment or prepayment, as the case may be, of Secured Obligations and permanent reductions of the Commitment Amount after February 28, 2020, whether voluntary or through mandatory application of asset disposition proceeds or enforcement of obligations as a result of a Bankruptcy or Insolvency; provided, however, upon the occurrence of a Triggering Event, any such repayment or prepayment of Secured Obligations, regardless of whether it is a permanent reduction of the Commitment Amount shall be a True-Up Payment. For greater certainty, any voluntary repayment of the Aggregate Principal Amount in the ordinary course of business, as part of the revolving nature of the Credit Facilities, shall not result in a permanent reduction of the Commitment Amount.
“True-Up Payment Application” means, with respect to each True-Up Payment, or any application of proceeds or distribution under or pursuant to the Intercreditor Agreement, the application of such payment in the following manner:
| (a) | if a Triggering Event has not occurred, (i) first, to repay the Aggregate Principal Amount, together with accrued and unpaid interest and fees on the amount so to be prepaid, to the extent that the Canadian Dollar Exchange Equivalent of the then outstanding Aggregate Principal Amount exceeds the February 28 Bank Amount, together with a corresponding dollar-for-dollar permanent reduction in the Commitment Amount; and (ii) second, pro rata, on the basis of the February 28 Bank Amount and the February 28 Noteholder Amounts (A) to repay the Aggregate Principal Amount, together with accrued and unpaid interest and fees on the amount so to be prepaid, and a corresponding dollar for dollar permanent reduction in the Commitment Amount and (B) to repay the Aggregate Noteholder Principal Amount, together with accrued and unpaid interest on the amount so to be prepaid and any Make-Whole Amount (with any such Make-Whole Amount to be payable in accordance with the Note Agreements as if such Make-Amount Amount were required to be paid pursuant to an optional prepayment pursuant to Section 8.2 of the applicable Note Agreement made by the Borrower and calculated on the basis of the applicable maturity date of the Existing Notes, being November 30, 2021); |
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| (b) | if a Triggering Event has occurred: |
| (i) | first, to repay pro rata (A) the Aggregate Principal Amount, together with accrued and unpaid interest and fees on the amount so to be prepaid, or the Aggregate Noteholder Principal Amount, together with accrued and unpaid interest on the amount so to be prepaid, whichever has had its Percentage Share increased from that existing at February 28, 2020 as of the time of the occurrence of such Triggering Event, until the Percentage Shares of the Canadian Dollar Exchange Equivalent of the Aggregate Principal Amount and the Aggregate Noteholder Principal Amount are equal to the Percentage Shares that existed on February 28, 2020, (B) the Cash Management Obligations and (C) New Hedging Obligations; and |
| (ii) | second: |
| (A) | if a Consensual Transaction has not occurred, pro rata to repay the Secured Obligations (other than any Make-Whole Amounts), including, without limitation, the Lender Protective Claim Amounts and the Noteholder Protective Claim Amounts, in each case calculated on the date of payment thereof, and in the case of each Existing Note, the applicable Crystallized Make-Whole Amount; and |
| (B) | if a Consensual Transaction has occurred, pro rata to repay the Secured Obligations (other than any Crystallized Make-Whole Amount) including, without limitation, any Make-Whole Amounts. |
| 2. | Amendments to Seventh Agreement. Effective as of the Tenth Amendment Date, the Seventh Amending Agreement is hereby amended as follows: |
| (a) | The definitions provided for in the second sentence of Section 1 of the Seventh Amending Agreement are hereby deleted in their entirety. |
| (b) | Section 2 of the Seventh Amending Agreement is hereby deleted in its entirety and “[Intentionally Deleted]” is hereby substituted therefor. |
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| (c) | Section 8 of the Seventh Amending Agreement is hereby deleted in its entirety and “[Intentionally Deleted]” is hereby substituted therefor. |
| 3. | Amendments to Credit Agreement. Effective as of the Tenth Amendment Date, the Credit Agreement is hereby amended as follows: |
| (a) | Section 13.1(e) of the Credit Agreement is hereby amended by adding the following new clause (xiv) immediately following the existing clause (xiii) thereof: |
“(xiv) Resignation or Replacement of Auditors. Within 10 days following the date on which the Borrower’s auditors resign or the Borrower elects to change auditors, as the case may be, notification thereof, together with such further information as the Majority Lenders may request.”
| (b) | Section 13.2(i) of the Credit Agreement is hereby amended to delete reference to “other Loan Party” therein and to substitute therefor “any Subsidiary”. |
| (c) | Section 13.3 of the Credit Agreement is hereby deleted in its entirety and the following is substituted therefor: |
| 13.3 | Financial Covenants |
While any Obligations under the Credit Facilities are outstanding or any Accommodation under the Credit Facilities remains available:
| (a) | Consolidated Total Debt to Consolidated Total Capitalization. The Borrower will not permit Consolidated Total Debt to exceed 75% of Consolidated Total Capitalization as at the end of any fiscal quarter of the Borrower. |
| (b) | Definitions. Solely for the purposes of this Section 13.3 and the calculation of the financial covenants described in paragraph (a) above, “Consolidated Total Capitalization” and “Consolidated Total Debt”, shall have the meanings ascribed thereto in the note purchase agreements governing the Existing Notes as at March 27, 2020.” |
| (d) | The definition of “Permitted Distribution” in Schedule A of the Credit Agreement is hereby deleted in its entirety and the following new definition is substituted therefor: |
“Permitted Distribution” means (a) any Distribution by a Loan Party to another Loan Party that in either case, owns the shares or Debt thereof, (b) any Distribution made in accordance with the PROP Partnership Agreement so long as the Loan Parties are paid their ratable share thereof, and (c) any Distribution to the extent payable in common shares or other similar equity interests of the Borrower.
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| (e) | The words “the Canadian Dollar Exchange Equivalent of the aggregate of the amount of principal outstanding from time to time under of the Existing Notes” in clause (ii) of the definition of “Borrowing Base Shortfall” in Schedule A of the Credit Agreement is hereby deleted and the words “the Canadian Dollar Exchange Equivalent of the aggregate of the amount of principal outstanding from time to time under the Existing Notes” are substituted therefor. |
| 4. | Extension. The parties hereto hereby confirm and agree that, as of the Tenth Amendment Date, the Revolving Period is extended to, and therefore the Term Conversion Date shall be, May 31, 2021; provided that: |
| (a) | on March 31, 2020, the Revolving Period shall end, without further action by the Agent or any of the Lenders if the Borrower has not concluded and entered into definitive documentation with its landlord, Degi Homburg Harris Limited Partnership (together with its successors and assigns, the “Landlord”), in respect of: (A) a reduction of the net rent payable under the amended and restated lease agreement dated as of April 15, 2008 between the Borrower and the Landlord (as amended and supplemented to the date hereof, the “Office Lease”) to an aggregate amount not to exceed [REDACTED] and (B) an indemnity in respect of the existing subleases of the Office Lease, such definitive documentation in form and substance satisfactory to the Agent and each of the Lenders, each in their sole and absolute discretion, and the Agent and the Lenders shall have received an officer’s certificate of the Borrower attaching certified true and complete copies of such definitive documentation; and |
| (b) | if any one of the Lenders, in its sole and absolute discretion, provides notice to the Agent and the Borrower in writing on or before June 22, 2020 that the Revolving Period shall end, and therefore the Term Conversion Date shall be, June 30, 2020, then the Revolving Period shall be deemed to end on, and the Term Conversion Date shall be, June 30, 2020 for all purposes hereof and of the other Documents and without the requirement for any step or action whatsoever. |
Notwithstanding the foregoing extension set forth in this Section 4 of this Agreement or the definition of “Term Period” set forth in the Credit Agreement, the last day of the Term Period shall be November 30, 2021; provided that, if the Revolving Period shall, at any time, end on or before June 30, 2020 pursuant to the foregoing, then the last day of the Term Period shall be April 1, 2021.
| 5. | Prepayments of Existing Notes and Aggregate Principal Amount. Notwithstanding any provision in the Credit Agreement or any other Document to the contrary, any amount be applied by the Borrower or any Subsidiary thereof for permanent repayments or prepayments, as the case may be, of the Aggregate Principal Amount and permanent reductions of the Commitment Amount after February 28, 2020, whether voluntary or through mandatory application of asset disposition proceeds or enforcement of obligations as a result of a Bankruptcy or Insolvency, shall be a True-Up Payment and shall be made to the Agent and/or the holders of the Existing Notes, as the case may be, in accordance with the True-Up Payment Application, and, for certainty, any such repayment or prepayment of the Aggregate Principal Amount shall result in an automatic and corresponding dollar-for-dollar permanent reduction in the Commitment Amount. For greater certainty, any voluntary repayment of the Aggregate Principal Amount in the ordinary course of business, as part of the revolving nature of the Credit Facilities, shall not result in a permanent reduction of the Commitment Amount. |
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| 6. | Conditions Precedent. This Tenth Amending Agreement is only effective upon and is subject to the satisfaction of the following conditions precedent: |
| (a) | the accuracy and completeness in all respects of the Borrower’s representations and warranties in Section 14 hereof; and |
| (b) | there shall have been amendments and restatements to the Note Purchase Agreements to: |
| (i) | extend the maturity date of all Existing Notes due April 7, 2020, May 29, 2020 and December 2, 2020, in each case, to a date no earlier than November 30, 2021; |
| (ii) | provide for, and otherwise permit, True-Up Payments in accordance with the True-Up Payment Application; |
| (iii) | provide for a reporting notice with respect to the resignation or replacement of auditors of the Borrower; |
| (iv) | provide for the revision of the definition of “Remaining Average Life” therein to provide that the number of years for which Remaining Average Life is to be calculated is calculated to two decimal places rather than the nearest one-twelfth year; and |
| (v) | such other amendments as are: (x) expressly contemplated by the Note Purchase Agreements amendment agreement dated as of March 13, 2020, a certified copy of which had been previously delivered to the Agent and the Lenders on March 13, 2020; (y) administrative in nature and acceptable to Blake, Cassels & Graydon LLP, as counsel to the Agent and the Lenders; and (z) made to conform the Note Purchase Agreements to the covenants set forth in the Credit Agreement (including as contemplated to be amended hereby), |
in each case, pursuant to amending agreements to the Note Purchase Agreements, each in form and substance satisfactory to the Agent and each of the Lenders, each in their sole and absolute discretion, and the Agent and the Lenders shall have received an officer’s certificate of the Borrower attaching certified true and complete copies of such amending agreements;
| (c) | there shall not have been any amendments to the Note Purchase Agreements other than as expressly contemplated by Section 6(b) above, and the Agent and the Lenders shall have received an officer’s certificate of the Borrower attaching certified true and complete copies of such amending agreements; |
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| (d) | the Intercreditor Agreement shall, concurrently with the effectiveness of this Tenth Amending Agreement, have been amended and restated to provide for, and otherwise recognize as between the holders of Secured Obligations (under and as defined in the Intercreditor Agreement) True-Up Payments in accordance with the True-Up Payment Application whether prior to or after the occurrence of any Enforcement Action (as defined in the Intercreditor Agreement); including, for certainty and for purposes of section 9(a) of the Intercreditor Agreement, a restatement of clause “FOURTH” thereof to reflect subparagraph (b) of the definition of True-Up Application, such amending agreement to the Intercreditor Agreement in form and substance satisfactory to the Agent and each of the Lenders, each in their sole and absolute discretion; and |
| (e) | Lenders’ counsel, Blake, Cassels & Graydon LLP, and the Financial Advisor shall each have received payment of all then outstanding fees, disbursements and charged expenses of Blake, Cassels & Graydon LLP and the Financial Advisor. |
The foregoing conditions precedent are for the sole benefit of the Agent and the Lenders and may be waived, in whole or in part and with or without further conditions, in the sole discretion of the Agent and the Lenders.
| 7. | Representations and Warranties. To confirm each Lender’s understanding concerning the Borrower and its business, properties and obligations, and to induce the Agent and each Lender to enter into this Tenth Amending Agreement, the Borrower hereby reaffirms to the Agent and each Lender that, as of the Tenth Amendment Date, its representations and warranties contained in Section 12.1 of the Credit Agreement, as amended by this Tenth Amending Agreement, and except to the extent such representations and warranties relate solely to an earlier date, are true and correct in all material respects and additionally represents and warrants as follows on the Tenth Amendment Date: |
| (a) | it has full corporate power and capacity to enter into this Tenth Amending Agreement and to perform its obligations hereunder and under the Credit Agreement, as amended by this Tenth Amending Agreement; |
| (b) | this Tenth Amending Agreement, and the performance by it of its obligations under the Credit Agreement, as amended by this Tenth Amending Agreement: |
| (i) | have been duly authorized, executed and delivered by it; and |
| (ii) | do not conflict with or contravene or constitute a default or create a Lien, other than a conflict, contravention, default or Lien which would not reasonably be expected to have a Material Adverse Effect or a Lien which is a Permitted Encumbrance, under: |
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| (A) | its constating documents, by-laws, any resolution of its Directors or any shareholders’ or partnership agreement in respect of the Borrower; |
| (B) | any agreement or document to which it is a party or by which any of its property is bound; or |
| (C) | any applicable Law; |
| (c) | the Credit Agreement, as amended by this Tenth Amending Agreement and the Seventh Amending Agreement, as amended by this Tenth Amending Agreement, each constitutes a valid and binding obligation of the Borrower, and is enforceable against the Borrower in accordance with the terms thereof, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, or similar statutes affecting the enforcement of creditors’ rights generally and by general principles of equity; and |
| (d) | no Default or Event of Default has occurred and is continuing. |
| 8. | Continuing Effect. Each of the parties hereto acknowledges and agrees that the Amended Credit Agreement (including the Seventh Amending Agreement) and all other documents entered into in connection therewith, will be and continue in full force and effect and are hereby confirmed and the rights and obligations of all parties thereunder will not be affected or prejudiced in any manner except as specifically provided herein. The Borrower hereby further acknowledges and agrees that all Security granted by it to the Agent for its own benefit and on behalf of the Lender Secured Parties and others in connection with the Credit Agreement (including the Seventh Amending Agreement) and any other documents executed and delivered pursuant thereto or in connection therewith, including confirmations and acknowledgements thereof, continue in full force and effect, without in any way impairing or derogating from any of the mortgages, pledges, charges, assignments, security interests and covenants therein contained or thereby constituted, as continuing security for all indebtedness, liabilities and other obligations of the Borrower under the Amended Credit Agreement and each other Document to which it is a party. |
| 9. | Expenses. The Borrower will pay or reimburse the Agent and the Lenders, as applicable, for the reasonable out of pocket expenses, including reasonable legal fees and disbursements (on a solicitor and his own client full indemnity basis) and enforcement costs, incurred by the Agent and the Lenders, as applicable, in connection with the negotiation, preparation, execution and maintenance of the Amended Credit Agreement and of this Tenth Amending Agreement. |
| 10. | Counterparts. This Tenth Amending Agreement may be executed in any number of counterparts (including by facsimile or other electronic transmission), each of which when executed and delivered will be deemed to be an original, but all of which when taken together constitutes one and the same instrument. Any party hereto may execute this Tenth Amending Agreement by signing any counterpart. |
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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THIS TENTH AMENDING AGREEMENT has been executed effective the date first written above.
| OBSIDIAN ENERGY LTD., as Borrower | ||
| By: | (signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief | ||
| Financial Officer | ||
[Tenth Amending Agreement – Obsidian]
| ROYAL BANK OF CANADA, as Agent on behalf of the Lenders | ||
| By: | (signed) [Name Redacted] | |
| Name: | [Name Redacted] | |
| Title: | Manager, Agency | |
| By: |
| |
| Name: | ||
| Title: | ||
[Tenth Amending Agreement – Obsidian]
| ROYAL BANK OF CANADA, as Lender | ||
| By: | (signed) [Name Redacted] | |
| Name: | [Name Redacted] | |
| Title: | Authorized Signatory | |
| By: |
| |
| Name: | ||
| Title: | ||
[Tenth Amending Agreement – Obsidian]
| THE BANK OF NOVA SCOTIA, as Lender | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Director | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Manager | ||
[Tenth Amending Agreement – Obsidian]
| BANK OF MONTREAL, as Lender | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Managing Director | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Tenth Amending Agreement – Obsidian]
| CANADIAN IMPERIAL BANK OF | ||
| COMMERCE, as Lender | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Director | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Account Manager | ||
[Tenth Amending Agreement – Obsidian]
| EXPORT DEVELOPMENT CANADA, as | ||
| Lender | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Special Risk Manager | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Special Risks Manager | ||
[Tenth Amending Agreement – Obsidian]
| ATB FINANCIAL, as Lender | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Director | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Associate Director | ||
[Tenth Amending Agreement – Obsidian]
| FÉDÉRATION DES CAISSES DESJARDINS DU QUÉBEC, as Lender | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Manager | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Tenth Amending Agreement – Obsidian]
| NATIONAL BANK OF CANADA, as Lender | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Manager | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Manager | ||
[Tenth Amending Agreement – Obsidian]
| BUSINESS DEVELOPMENT BANK OF | ||
| CANADA, as Lender | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Assistant Vice-President | ||
| Business Restructuring | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Director | ||
[Tenth Amending Agreement – Obsidian]
ACKNOWLEDGEMENT:
Obsidian Energy Ltd. (by its former name, Penn West Petroleum Ltd.), 1647456 Alberta Ltd., Penn West Northern Harrier Partnership, Obsidian Energy Partnership (by its former name, Penn West Petroleum), Penn West PROP Holdco Ltd., Penn West PROP Limited Partnership and Penn West Sandhill Crane Ltd. (each a “Guarantor”, and collectively, the “Guarantors”) each hereby acknowledge and consent to the Tenth Amending Agreement and acknowledge, agree and confirm that the guarantee dated May 18, 2017 (the “Guarantee”), provided by the Guarantors for the benefit of the Lender Secured Parties, and all representations, warranties, covenants and other obligations set forth therein are binding on the Guarantors and continue in full force and effect as a guarantee of all of the Lender Secured Obligations. Each Guarantor hereby restates the terms set forth in the Guarantee to the extent necessary under applicable Law to give effect to the foregoing. The Guarantors hereby further acknowledge and agree that all Security granted by each of the Guarantors to the Agent on behalf of the Lender Secured Parties and others in connection with the Guarantee, the Credit Agreement and any other documents executed and delivered pursuant thereto or in connection therewith, continue in full force and effect, without in any way impairing or derogating from any of the mortgages, pledges, charges, assignments, security for all indebtedness, liabilities and other obligations of the undersigned.
Acknowledged as of the Tenth Amendment Date.
| OBSIDIAN ENERGY LTD. | ||
| Per: | (signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief | ||
| Financial Officer | ||
| PENN WEST NORTHERN HARRIER | ||
| PARTNERSHIP, by its managing partner, | ||
| PENN WEST SANDHILL CRANE LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Tenth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| OBSIDIAN ENERGY PARTNERSHIP, | ||
| by its managing partner, OBSIDIAN | ||
| ENERGY LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief | ||
| Financial Officer | ||
[Tenth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST PROP HOLDCO LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Tenth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST PROP LIMITED | ||
| PARTNERSHIP, by its general partner, | ||
| PENN WEST PROP HOLDCO LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Tenth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST SANDHILL CRANE LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Tenth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| 1647456 ALBERTA LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Tenth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
Exhibit 99.5
Redacted Version
ELEVENTH AMENDING AGREEMENT
TO THE OBSIDIAN ENERGY LTD.
AMENDED AND RESTATED CREDIT AGREEMENT
THIS ELEVENTH AMENDING AGREEMENT is made effective as of June 22, 2020 (the “Eleventh Amendment Date”),
BETWEEN:
OBSIDIAN ENERGY LTD.
as Borrower
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ROYAL BANK OF CANADA,
THE BANK OF NOVA SCOTIA,
BANK OF MONTREAL,
CANADIAN IMPERIAL BANK OF COMMERCE,
EXPORT DEVELOPMENT CANADA,
ATB FINANCIAL,
FÉDÉRATION DES CAISSES DESJARDINS DU QUÉBEC,
NATIONAL BANK OF CANADA, and
BUSINESS DEVELOPMENT BANK OF CANADA
as Lenders
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ROYAL BANK OF CANADA
as Administrative Agent on behalf of the Lenders
PREAMBLE:
| A. | Pursuant to the Amended and Restated Credit Agreement dated May 18, 2017 as amended by a first amending agreement dated May 10, 2018, a second amending agreement dated December 14, 2018, a third amending agreement dated March 21, 2019, a fourth amending agreement dated May 31, 2019, a fifth amending agreement made effective as of June 28, 2019, a sixth amending agreement made effective as of August 12, 2019, a seventh amending agreement made effective as of February 28, 2020 (the “Seventh Amending Agreement”), an eighth amending agreement made effective as of March 4, 2020, a ninth amending agreement made effective as of March 13, 2020 and a tenth amending agreement made effective as of March 27, 2020 (the “Tenth Amending Agreement”) (as so amended, the “Credit Agreement”), among Obsidian Energy Ltd. (by its former name, Penn West Petroleum Ltd.), as borrower (the “Borrower”), Royal Bank of Canada (“RBC”) and each of the other financial institutions party thereto, as lenders, and RBC, as administrative agent (the “Agent”), the Lenders agreed to provide to the Borrower the Credit Facilities. |
| B. | The Parties wish to amend the Credit Agreement, the Seventh Amending Agreement and the Tenth Amending Agreement on the terms and conditions herein provided. |
AGREEMENT:
NOW THEREFORE in consideration of the premises, the covenants and the agreements herein contained, the Parties agree as follows:
| 1. | Definitions. Capitalized terms used in this Eleventh Amending Agreement will, unless otherwise defined herein, have the meanings attributed to such terms in the Credit Agreement, as amended hereby (the “Amended Credit Agreement”). In addition, for purposes of this Eleventh Amending Agreement, the following capitalized terms have the following meanings: |
“Note Purchase Agreements” means the “Note Agreements” under and as defined in the Intercreditor Agreement.
“Permitted NPAs Amendments” means amendments to:
| (a) | section 8.9 of each of the Note Purchase Agreements to provide for the following: [REDACTED] and |
| (b) | section 7.1(n) of each of the Note Purchase Agreements to delete “June 2020” where it appears in such section and to substitute “September 2020” therefor. |
| 2. | Amendments to Seventh Amending Agreement and Tenth Amending Agreement. Effective as of the Eleventh Amendment Date, the Seventh Amending Agreement and the Tenth Amending Agreement are hereby amended as follows: |
| (a) | Section 4 of the Tenth Amending Agreement is hereby deleted in its entirety and “[Intentionally Deleted]” is hereby substituted therefor; |
| (b) | Section 13 of the Seventh Amending Agreement is amended by: (i) deleting subparagraph (b) thereof in its entirety; and (b) deleting; “and” where it appears in subparagraph (a) thereof and substituting “.” therefor; and |
| (c) | Section 5 of the Seventh Amending Agreement is hereby deleted in its entirety and “[Intentionally Deleted]” is hereby substituted therefor. |
Extension. The parties hereto hereby confirm and agree that, as of the Eleventh Amendment Date, the Revolving Period is extended to, and therefore the Term Conversion Date shall be, May 31, 2021; provided that, if any one of the Lenders, in its sole and absolute discretion, provides notice to the Agent and the Borrower in writing on or before September 4, 2020 that the Revolving Period shall end, and therefore the Term Conversion Date shall be, September 15, 2020, then the Revolving Period shall be deemed to end on, and the Term Conversion Date shall be, September 15, 2020 for all purposes hereof and of the other Documents and without the requirement for any step or action whatsoever. Notwithstanding the foregoing extension set forth in this Section 2 of this Agreement or the definition of “Term Period” set forth in the Credit Agreement, the last day of the Term Period shall be November 30, 2021; provided that, if the Revolving Period shall, at any time, end on or before September 15, 2020 pursuant to the foregoing, then the last day of the Term Period shall be April 1, 2021.
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| 3. | Additional Borrowing Base Determination. The parties hereto hereby confirm, acknowledge and agree that, in addition to the determinations of the Borrowing Base set forth in Section 3.10(b) of the Credit Agreement, the Lenders may make an additional determination of the Borrowing Base on September 15, 2020, if the Revolving Period ends thereon (the “Additional Borrowing Base Determination”). The Additional Borrowing Base Determination shall proceed on September 15, 2020 unless all of the Lenders agree otherwise. The provisions of Section 3.10 of the Credit Agreement shall apply to each Additional Borrowing Base Determination in all respects. For certainty, the Additional Borrowing Base Determinations shall not constitute a Borrowing Base Determination pursuant to Section 3.10(b)(i) of the Credit Agreement. |
| 4. | Amendments to Credit Agreement. Effective as of the Eleventh Amendment Date, the Credit Agreement is hereby amended as follows: |
Extension of Requirement to Offer Monthly Meetings re: Sale and Recapitalization Process
| (a) | Section 13.1(e)(x) of the Credit Agreement is hereby amended to delete “June 2020” where it appears therein and to substitute “September 2020” therefor; |
LIBOR Replacement Amendments
| (b) | the following new definition is inserted into Schedule A to the Credit Agreement in the applicable alphabetical order: |
“LIBOR Discontinuation Date” has the meaning set out in Section 8.4(a)(i).
| (c) | the definition of “LIBOR” contained in Schedule A to the Credit Agreement is hereby amended by deleting each reference therein to “Interest Period” and substituting, in each case, “LIBOR Period” therefor; |
| (d) | Section 8.4 of the Credit Agreement is hereby deleted in its entirety and the following new Section 8.4 is substituted therefor: |
8.4 LIBOR Replacement
| (a) | If at any time the Agent determines (which determination shall be conclusive, absent manifest error) that: |
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| (i) | the circumstances described in Section 8.3 have arisen and such circumstances are unlikely to be temporary, or that the circumstances described in Section 8.3 have not arisen, but either (A) the applicable supervisor or administrator of LIBOR, or (B) a governmental authority having jurisdiction over the Agent, has made a public statement identifying a specific date after which LIBOR shall no longer be used for determining interest rates for loans (either such date, a “Libor Discontinuation Date”); or |
| (ii) | a rate other than LIBOR has become a widely recognized benchmark rate for newly originated loans denominated in U.S. Dollars in the Canadian market, then the Agent and the Borrower shall negotiate in good faith to select a replacement index rate of interest for LIBOR and make such spread adjustments thereto and other related amendments to this Agreement such that, to the extent practicable, the all-in interest rate paid by the Borrower under this Agreement based on the replacement index rate of interest will be substantially equivalent to the all-in interest rate applicable to LIBOR Based Loans made hereunder immediately prior to the LIBOR’s replacement. |
| (b) | Upon an agreement being reached between the Agent and the Borrower pursuant to clause (a) above, the Agent and the Borrower shall enter into an amendment to this Agreement that gives effect to the replacement index rate of interest, spread adjustments and such other related amendments as may be appropriate in the discretion of the Agent for the implementation and administration of U.S. Dollar loans bearing interest calculated with reference to the replacement index rate of interest. Notwithstanding anything to the contrary in this Agreement (including Section 17.17) or any other Document, such amendment shall become effective at 5:00 p.m. (Calgary time) on the fifth Banking Day after a copy of the amendment is provided to the Lenders and without any further action or consent of any other party to this Agreement, unless the Agent receives, on or before such date and time, a written notice from the Majority Lenders stating that such Lenders object to such amendment. |
| (c) | Selection of the replacement index rate of interest, spread adjustments, and all other related amendments to this Agreement contemplated by this Section shall give due consideration to the prevailing market practice for: (i) determining a rate of interest applicable to newly originated U.S. Dollar loans made in Canada at such time, and (ii) transitioning existing loans from LIBOR-based interest rates to loans bearing interest calculated with reference to the new reference index rate of interest. |
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| (d) | Until an amendment reflecting the transition to a new reference index rate of interest becomes effective as contemplated by this Section, each Notice of Borrowing, Notice of Conversion or Notice of Rollover with respect to a LIBOR Based Loan shall continue to bear interest calculated with reference to LIBOR; provided that if the Agent determines (which determination shall be conclusive, absent manifest error) that a Libor Discontinuation Date has occurred, then following the Libor Discontinuation Date, until such time as an amending agreement adopting a new reference index rate of interest becomes effective as contemplated by this Section: |
| (i) | any Notice of Borrowing requesting an Advance by way of, Notice of Conversion requesting a Conversion into, or Notice of Rollover requesting a Rollover of, LIBOR Based Loans under a Credit Facility shall be deemed to be a request for a U.S. Base Rate Loan in the same principal amount under the same Credit Facility; and |
| (ii) | in respect of a maturing LIBOR Based Loan under a Credit Facility, in the event the Borrower fails to give, if applicable, a Notice of Conversion with respect thereto specifying the Conversion of such LIBOR Based Loan on the last day of the applicable LIBOR Period into an Accommodation other than a LIBOR Based Loan (and provided a valid notice of repayment has not been delivered to the Agent in respect thereof), such maturing LIBOR Based Loan shall be converted on the last day of the applicable LIBOR Period into a U.S. Base Rate Loan under the same Credit Facility as if a valid Conversion Notice had been given to the Agent by the Borrower pursuant to the provisions hereof. |
| (e) | Notwithstanding any other provision of the Agreement, if at any time the replacement index rate of interest agreed upon to replace LIBOR shall be less than zero, it shall be deemed to be zero for the purposes of the Agreement. |
| (f) | For certainty, upon the occurrence of a Libor Discontinuation Date, the U.S. Base Rate shall be determined without regard to subparagraph (c) of the definition thereof. |
CDOR Rate Discontinuance Amendments
| (e) | the following new definition is inserted into Schedule A to the Credit Agreement in the applicable alphabetical order: |
| “CDOR | Discontinuation Date” has the meaning set out in Section 9.7(a). |
| (f) | the definition of “CDOR Rate” contained in Schedule A to the Credit Agreement is hereby deleted in its entirety and the following new definition is substituted therefor: |
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“CDOR Rate” means, on any day:
| (a) | the per annum rate of interest which is the rate determined as being the arithmetic average of the rates applicable to Canadian Dollar bankers’ acceptances having identical issue and comparable maturity dates as the Bankers’ Acceptances proposed to be issued by the Borrower displayed and identified as such on the display referred to as the “Refinitiv Screen Canadian Dollar Offered Rate (CDOR) Page” (or any display substituted therefor) of Reuters Monitor Money Rates Service (or any successor thereto or Affiliate thereof) as at approximately 10:00 a.m. (Toronto time) on such day, or if such day is not a Banking Day, then on the immediately preceding Banking Day (as adjusted by the Agent in good faith after 10:00 a.m. (Toronto time) to reflect any error in a posted rate of interest or in the posted average annual rate of interest); and |
| (b) | if the rate in subparagraph (a) above does not appear on such “Refinitiv Screen Canadian Dollar Offered Rate (CDOR) Page” or is not otherwise available for any reason, then the CDOR Rate, on any day, shall be the discount rate quoted by the Agent (determined as of 10:00 a.m. (Toronto time) on such day) which would be applicable in respect of an issue of bankers’ acceptances in a comparable amount and with comparable maturity dates to the Bankers’ Acceptances proposed to be issued by the Borrower on such day, or if such day is not a Banking Day, then on the immediately preceding Banking Day, |
provided that, if the CDOR Rate would otherwise be less than zero, the CDOR Rate shall instead be deemed for all purposes of this Agreement to be zero.
| (g) | the Credit Agreement is hereby amended by adding the following new Section 9.7 thereto, immediately following the existing Section 9.6 of the Credit Agreement, as follows: |
| 9.7 | CDOR Rate Discontinuance |
| (a) | If at any time the Agent determines (which determination shall be conclusive, absent manifest error) that: |
| (i) | an interest rate or discount rate is not ascertainable in subparagraph (a) of the definition of “CDOR Rate” (for the purposes of this Section 9.7, “CDOR”) and the inability to ascertain such rate is unlikely to be temporary; |
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| (ii) | the regulatory supervisor for the administrator of CDOR, the Bank of Canada, an insolvency official with jurisdiction over the administrator of CDOR, a resolution authority with jurisdiction over the administrator of CDOR, or a court or an entity with similar insolvency or resolution authority over the administrator of CDOR, has made a public statement, or published information, stating that the administrator of CDOR, has ceased or will cease to provide CDOR, permanently or indefinitely on a specific date; provided that, at that time, there is no successor administrator that will continue to provide CDOR; or |
| (iii) | the administrator of CDOR or a governmental authority having jurisdiction over the Agent or the administrator of CDOR has made a public statement identifying a specific date after which CDOR shall no longer be made available, or used for determining the interest rate of loans or the discount rates for bankers’ acceptances; provided that, at that time, there is no successor administrator that will continue to provide CDOR |
(the date of determination or such specific date in the foregoing subparagraphs (i) through (iii), the “CDOR Discontinuation Date”); or
| (iv) | a rate other than CDOR has become a widely recognized benchmark rate to determine the discount rate for Bankers’ Acceptances in the Canadian market, |
then the Agent and the Borrower shall negotiate in good faith to select a replacement index rate for CDOR and make such spread adjustments thereto and other related amendments to this Agreement that shall give due consideration to the prevailing market practice for: (x) determining a rate of interest applicable to newly originated Canadian Dollar loans made in Canada at such time and for determining the discount rate for Canadian Dollar bankers’ acceptances issued and accepted in Canada at such time, and (y) transitioning existing loans and bankers’ acceptances from CDOR-based rates to loans bearing interest and bankers’ acceptances with discount rates calculated with reference to the new reference index rate; provided that, to the extent reasonably practicable, the all-in rate paid by the Borrower under this Agreement based on such replacement index rate will be substantially equivalent to the all-in rate applicable to Bankers’ Acceptances and BA Equivalent Loans made hereunder prior to the replacement of CDOR (excluding, for certainty, any differences resulting from changes to the Applicable Pricing Rate as a result of the fluctuation of the First Lien Debt to EBITDA Ratio).
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| (b) | Upon an agreement being reached between the Agent and the Borrower pursuant to the immediately preceding paragraph, the Agent and the Borrower shall enter into an amendment to this Agreement that gives effect to the replacement index rate, adjustments to the Applicable Pricing Rate and such other related amendments as may be appropriate in the discretion of the Agent, acting reasonably, for the implementation and administration of Canadian Dollar loans bearing interest or bankers’ acceptances with discount rates calculated with reference to the replacement index rate. Notwithstanding anything to the contrary in this Agreement (including Section 17.17) or any other Document, such amendment shall become effective at 5:00 p.m. (Calgary time) on the fifth Banking Day after a copy of the amendment is provided to the Lenders and without any further action or consent of any other party to this Agreement, unless the Agent receives, on or before such date and time, a written notice from a Lender stating that such Lender objects to such amendment; provided that, if such replacement index rate agreed upon to replace CDOR shall be less than zero, it shall be deemed to be zero for the purposes of this Agreement. |
| (c) | Until an amendment reflecting the transition to a new reference index rate becomes effective as contemplated by this Section, the discount rate applicable to each Drawdown, Conversion or Rollover of a Bankers’ Acceptance or a BA Equivalent Loan shall continue to be calculated with reference to CDOR; provided that if the Agent determines (which determination shall be conclusive, absent manifest error) that a CDOR Discontinuation Date has occurred, then following the CDOR Discontinuation Date, until such time as an amending agreement adopting such a new reference index rate becomes effective as contemplated by this Section: |
| (i) | any requested Drawdown by way of, Conversion into, or Rollover of, a Bankers’ Acceptance or a BA Equivalent Loan under a Credit Facility shall be deemed to be a request for a Canadian Prime Rate Loan in the same principal amount under the same Credit Facility; and |
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| (ii) | in respect of a maturing Bankers’ Acceptance or a BA Equivalent Loan under a Credit Facility, in the event the Borrower fails to give, if applicable, a Notice of Conversion with respect thereto specifying the Conversion of such Bankers’ Acceptance or BA Equivalent Loan (on the maturity date thereof) into an Accommodation other than a Bankers’ Acceptance or a BA Equivalent Loan (and provided a valid notice of repayment has not been delivered to the Agent in respect thereof), such maturing Bankers’ Acceptance or BA Equivalent Loan shall be converted on the maturity date thereof into a Canadian Prime Rate Loan under the same Credit Facility as if a valid Notice of Conversion had been given to the Agent by the Borrower pursuant to the provisions hereof. |
| (d) | For certainty, upon the occurrence of a CDOR Discontinuation Date, the Canadian Prime Rate shall be determined without regard to subparagraph (b) of the definition thereof. |
Canadian Prime Rate Related Amendments
| (h) | the definition of “Floor Rate” contained in Schedule A to the Credit Agreement is hereby deleted in its entirety; |
| (i) | the definition of “Canadian Prime Rate” contained in Schedule A to the Credit Agreement is hereby deleted in its entirety and the following new definition is substituted therefor: |
“Canadian Prime Rate” means, for any day, the greater of:
| (a) | the rate of interest per annum established from time to time by the Agent, including on behalf of the Operating Lender, as the reference rate of interest for the determination of interest rates that the Agent will charge to customers in Canada for Canadian Dollar demand loan; and |
| (b) | the One Month CDOR Rate plus 1.00% per annum, |
provided that (i) if both such rates are equal or if such one month bankers’ acceptance rate is unavailable for any reason on any date of determination, then the “Canadian Prime Rate” shall be the rate specified in subparagraph (a) above and (ii) if the rate determined as aforesaid shall ever be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
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| (j) | the following new definition is inserted into Schedule A to the Credit Agreement in the applicable alphabetical order: |
“One Month CDOR Rate” means, for any day, the annual rate of interest which is the rate determined by the Agent as being the arithmetic average of the “BA 1 mth” rates per annum applicable to Canadian Dollar bankers’ acceptances displayed and identified as such on the display referred to as the “Refinitiv Screen Canadian Dollar Offered Rate (CDOR) Page” (or any display substituted therefor) of Reuters Monitor Money Rates Service (or any successor thereto or Affiliate thereof) as at approximately 10:00 a.m. (Toronto time) on such day, or if such day is not a Banking Day, then on the immediately preceding Banking Day (as adjusted by the Agent in good faith after 10:00 a.m. (Toronto time) to reflect any error in a posted rate or in the posted rate); provided, however, that if such a rate does not appear on such CDOR Page, then the One Month CDOR Rate, on any day, shall be the discount rate then applicable to bankers’ acceptances accepted by the Agent as quoted by the Agent (determined as of 10:00 a.m. (Toronto time) on such day) which would be applicable in respect of an issue of bankers’ acceptances with a 30 day term on such day, or if such day is not a Banking Day, then on the immediately preceding Banking Day; provided, further, that, if the rate determined as aforesaid shall ever be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
U.S. Base Rate Definition Amendment
| (k) | the definition of “U.S. Base Rate” contained in Schedule A to the Credit Agreement is hereby deleted in its entirety and the following new definition is substituted therefor: |
“U.S. Base Rate” means, for any day, the greatest of:
| (a) | the rate of interest per annum established from time to time by the Agent as the reference rate of interest for the determination of interest rates that the Agent will charge to customers in Canada for U.S. Dollar demand loans in Canada; |
| (b) | the rate of interest per annum for such day or, if such day is not a Banking Day, on the immediately preceding Banking Day, equal to the sum of the Federal Funds Rate (expressed for such purpose as a yearly rate per annum, on the basis of a year of 365 days, in accordance with Section 7.2(d)), plus 1.00% per annum; and |
| (c) | LIBOR for a period of 1 month on such day (or in respect of any day that is not a Banking Day, such LIBOR in effect on the immediately preceding Banking Day) plus 1.00% per annum, |
provided that (i) if all such rates are equal or if such Federal Funds Rate and such LIBOR are unavailable for any reason on the date of determination, then the “U.S. Base Rate” shall be the rate specified in (a) above and (ii) if the rate determined as aforesaid shall ever be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
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Federal Funds Rate Definition Amendment
| (l) | the definition of “Federal Funds Rate” contained in Schedule A to the Credit Agreement is hereby deleted in its entirety and the following new definition is substituted therefor: |
“Federal Funds Rate” means, for any day, the rate of interest per annum equal to (a) the weighted average (rounded upwards, if necessary, to the next 1/100th of one percent per annum) of the annual rates of interest on overnight Federal funds transactions with members of the Federal Reserve System (or any successor thereof) arranged by Federal funds brokers on such day, as published on the next succeeding Banking Day by the Federal Reserve Bank of New York (or any successor thereto) or, (b) if such day is not a Banking Day, such weighted average for the immediately preceding Banking Day for which the same is published or, (c) if such rate is not so published for any day that is a Banking Day, the average (rounded upwards, if necessary, to the next 1/100th of one percent per annum) of the quotations for such day on such transactions received by the Agent (including on behalf of the Operating Lender) from three Federal funds brokers of recognized standing selected by the Agent; provided that, if the Federal Funds Rate would be less than zero on any day, then such rate shall be deemed to be zero on such day.
Brexit Related Amendments
| (m) | the following new definitions are inserted into Schedule A to the Credit Agreement in the applicable alphabetical order: |
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Resolution Authority” means, with respect to an EEA Financial Institution, an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain Affiliates of such credit institutions or investment firms.
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“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Write-Down and Conversion Powers” means:
| (a) | with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule; and |
| (b) | with respect to the United Kingdom, any powers of the applicable UK Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers. |
| (n) | the definition of “Bail-In Action” contained in Schedule A to the Credit Agreement is hereby deleted in its entirety and the following new definition is substituted therefor: |
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
| (o) | the definition of “Bail-In Legislation” contained in Schedule A to the Credit Agreement is hereby deleted in its entirety and the following new definition is substituted therefor: |
“Bail-In Legislation” means:
| (a) | with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule; and |
| (b) | with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their respective Affiliates (other than through liquidation, administration or other insolvency proceedings). |
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| (p) | Section 18.13 of the Credit Agreement is hereby deleted in its entirety and the following new Section 18.13 is substituted therefor: |
| 18.13 | Acknowledgement and Consent to Bail-In of Affected Financial Institutions |
Notwithstanding anything to the contrary in any Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
| (a) | the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and |
| (b) | the effects of any Bail-In Action on any such liability, including, if applicable: |
| (i) | a reduction in full or in part or cancellation of any such liability; |
| (ii) | a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Document; or |
| (iii) | the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority. |
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Amendments for to Provide for Qualified ECP Guarantor Keepwell
| (q) | the following new definitions are inserted into Schedule A to the Credit Agreement in the applicable alphabetical order: |
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
“Qualified ECP Guarantor” means, in respect of any Financial Instrument Obligation, as applicable, the Borrower or a Subsidiary (that provides a guarantee to the Agent, the Lenders, the Hedging Affiliates and the Cash Managers) that has total assets exceeding U.S.$10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Financial Instrument Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
| (r) | Section 13.1 of the Credit Agreement is hereby amended by adding the following new paragraph (y) immediately following the existing paragraph (x) thereof, as follows: |
| (y) | Keepwell |
The Borrower shall, and shall ensure that, to the extent any Subsidiary is a Qualified ECP Guarantor, the Borrower and each Subsidiary shall, absolutely, unconditionally and irrevocably undertake to provide such funds or other support as may be needed from time to time by the Borrower or any Subsidiary (that provides a guarantee to the Agent, the Lenders and the Swap Lenders) to honour all of its obligations under its guarantee in respect of Swap Indebtedness (provided, however, the Borrower and each Subsidiary shall only be liable under such undertaking for the maximum amount of such liability that can be incurred without rendering its obligations under this undertaking, or otherwise under the Documents to which it is a party, voidable under applicable Law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of the Borrower and each Subsidiary under this undertaking shall remain in full force and effect until discharged in accordance with the provisions of the relevant Document. The Borrower intends that this Section and the undertaking provided for shall constitute, and shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of the Borrower and its Subsidiaries (that provide a guarantee to the Agent, the Lenders and the Swap Lenders) for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
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Amendments for Acknowledgement Regarding Any Supported QFCs
| (s) | the following new definitions are inserted into Schedule A to the Credit Agreement in the applicable alphabetical order: |
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“CFR” means the Code of Federal Regulations (United States).
“Covered Entity” means any of the following:
| (a) | a “covered entity” as that term is defined in, and interpreted in accordance with, 12 CFR § 252.82(b); |
| (b) | a “covered bank” as that term is defined in, and interpreted in accordance with, 12 CFR § 47.3(b); or |
| (c) | a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 CFR § 382.2(b). |
“Covered Party” has the meaning set out in Section 4.10(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning set out in 4.10(a).
“Supported QFC” has the meaning set out in 4.10(a).
“U.S. Special Resolution Regime” has the meaning set out in Section 4.10(a).
| (t) | the Credit Agreement is hereby amended by adding the following new Section 4.10 thereto, immediately following the existing Section 4.9 of the Credit Agreement, as follows: |
4.10 Acknowledgement Regarding Any Supported QFCs
| (a) | To the extent that the Documents provide support, through a guarantee or otherwise, for any Swap Document or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the United States Federal Deposit Insurance Act and Title II of the United States Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Documents and any Supported QFC may in fact be stated to be governed by the laws of the Province of Alberta and the laws of Canada applicable therein or the laws of any other jurisdiction). |
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| (b) | In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support. |
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Counterparts; Electronic Execution Amendment
| (u) | Section 18.15 of the Credit Agreement is hereby deleted in its entirety and the following new Section 18.15 is substituted therefor: |
18.13 Counterparts; Electronic Execution
This Agreement and each other Document may be executed in one or more counterparts (and by different parties hereto in different counterparts), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by fax or other electronic transmission of an executed counterpart of a signature page to this Agreement and each other Document shall be effective as delivery of an original executed counterpart of this Agreement and such other Document. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement or any other Document shall be deemed to include electronic signatures, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including, without limitation, as in provided Parts 2 and 3 of the Personal Information Protection and Electronic Documents Act (Canada), the Electronic Commerce Act, 2000 (Ontario), the Electronic Transaction Acts (British Columbia), the Electronic Transactions Act (Alberta), or any other similar laws based on the Uniform Electronic Commerce Act of the Uniform Law Conference of Canada. The Agent may, in its discretion, require that any such documents and signatures executed electronically or delivered by fax or other electronic transmission be confirmed by a manually-signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature executed electronically or delivered by fax or other electronic transmission.
Clean-Up Amendment to the Definition of Borrowing Base Shortfall
| (v) | the words “the Canadian Dollar Exchange Equivalent of the aggregate of the amount of principal outstanding from time to time under of the Existing Notes” in clause (ii) of the definition of “Borrowing Base Shortfall” in Schedule A of the Credit Agreement is hereby deleted and [REDACTED] is substituted therefor. |
| 5. | Fees. The Borrower agrees to pay to the Agent, on account of the Lenders, the following extension fees in connection with the extension of the Revolving Period contemplated hereby and as previously contemplated by the Seventh Amending Agreement: |
| (a) | a fee being in an amount in Canadian Dollars equal to [REDACTED] bps of the Commitment Amount (as in effect as at the Seventh Amendment Date (as defined in the Seventh Amending Agreement)), payable on or prior to June 30, 2020; and |
| (b) | a fee being in an amount in Canadian Dollars equal to [REDACTED] bps of the Commitment Amount (as in effect as at the Seventh Amendment Date), payable: |
| (i) | on June 30, 2020 unless on or prior to June 30, 2020: |
| (A) | the Permitted NPAs Amendments are in effect with no other amendments, supplements, modifications or restatements to any of the Note Purchase Agreements other than to provide for the Permitted NPAs Amendments; and |
- 17 -
| (B) | the Agent and the Lenders shall have received an officer’s certificate of the Borrower attaching certified true and complete copies of such Permitted NPAs Amendments and certifying that the Permitted NPAs Amendments have been put into effect with no other amendments, supplements, modifications or restatements to any of the Note Purchase Agreements other than to provide for the Permitted NPAs Amendments; or |
| (ii) | on September 15, 2020 unless the Lenders have elected on or prior to September 4, 2020 to end the Revolving Period. |
| 6. | Conditions Precedent. The amendments and extension provided for in Sections 2 and 3 of this Eleventh Amending Agreement are only effective upon and is subject to the satisfaction of the following conditions precedent: |
| (a) | the accuracy and completeness in all respects of the Borrower’s representations and warranties in Section 7 hereof; and |
| (b) | Lenders’ counsel, Blake, Cassels & Graydon LLP, and the Financial Advisor shall each have received payment of all then outstanding fees, disbursements and charged expenses of Blake, Cassels & Graydon LLP and the Financial Advisor. |
The foregoing conditions precedent are for the sole benefit of the Agent and the Lenders and may be waived, in whole or in part and with or without further conditions, in the sole discretion of the Agent and the Lenders.
| 7. | Representations and Warranties. To confirm each Lender’s understanding concerning the Borrower and its business, properties and obligations, and to induce the Agent and each Lender to enter into this Eleventh Amending Agreement, the Borrower hereby reaffirms to the Agent and each Lender that, as of the Eleventh Amendment Date, its representations and warranties contained in Section 12.1 of the Credit Agreement, as amended by this Eleventh Amending Agreement, and except to the extent such representations and warranties relate solely to an earlier date, are true and correct in all material respects and additionally represents and warrants as follows on the Eleventh Amendment Date: |
| (a) | it has full corporate power and capacity to enter into this Eleventh Amending Agreement and to perform its obligations hereunder and under the Credit Agreement, as amended by this Eleventh Amending Agreement; |
| (b) | this Eleventh Amending Agreement, and the performance by it of its obligations under the Credit Agreement, as amended by this Eleventh Amending Agreement: |
| (i) | have been duly authorized, executed and delivered by it; and |
| (ii) | do not conflict with or contravene or constitute a default or create a Lien, other than a conflict, contravention, default or Lien which would not reasonably be expected to have a Material Adverse Effect or a Lien which is a Permitted Encumbrance, under: |
- 18 -
| (A) | its constating documents, by-laws, any resolution of its Directors or any shareholders’ or partnership agreement in respect of the Borrower; |
| (B) | any agreement or document to which it is a party or by which any of its property is bound; or |
| (C) | any applicable Law; |
| (c) | the Credit Agreement, as amended by this Eleventh Amending Agreement, the Seventh Amending Agreement, as amended by this Eleventh Amending Agreement and the Tenth Amending Agreement, as amended by this Eleventh Amending Agreement, each constitutes a valid and binding obligation of the Borrower, and is enforceable against the Borrower in accordance with the terms thereof, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, or similar statutes affecting the enforcement of creditors’ rights generally and by general principles of equity; and |
| (d) | no Default or Event of Default has occurred and is continuing. |
| 8. | Continuing Effect. Each of the parties hereto acknowledges and agrees that the Amended Credit Agreement (including the Seventh Amending Agreement and the Tenth Amending Agreement) and all other documents entered into in connection therewith, will be and continue in full force and effect and are hereby confirmed and the rights and obligations of all parties thereunder will not be affected or prejudiced in any manner except as specifically provided herein. The Borrower hereby further acknowledges and agrees that all Security granted by it to the Agent for its own benefit and on behalf of the Lender Secured Parties and others in connection with the Credit Agreement (including the Seventh Amending Agreement and the Tenth Amending Agreement) and any other documents executed and delivered pursuant thereto or in connection therewith, including confirmations and acknowledgements thereof, continue in full force and effect, without in any way impairing or derogating from any of the mortgages, pledges, charges, assignments, security interests and covenants therein contained or thereby constituted, as continuing security for all indebtedness, liabilities and other obligations of the Borrower under the Amended Credit Agreement and each other Document to which it is a party. |
| 9. | Expenses. The Borrower will pay or reimburse the Agent and the Lenders, as applicable, for the reasonable out of pocket expenses, including reasonable legal fees and disbursements (on a solicitor and his own client full indemnity basis) and enforcement costs, incurred by the Agent and the Lenders, as applicable, in connection with the negotiation, preparation, execution and maintenance of the Amended Credit Agreement and of this Eleventh Amending Agreement. |
- 19 -
| 10. | Counterparts. This Eleventh Amending Agreement may be executed in one or more counterparts (and by different parties hereto in different counterparts), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by fax or other electronic transmission of an executed counterpart of a signature page to this Eleventh Amending Agreement shall be effective as delivery of an original executed counterpart of this Eleventh Amending Agreement. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Eleventh Amending Agreement shall be deemed to include electronic signatures, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including, without limitation, as in provided Parts 2 and 3 of the Personal Information Protection and Electronic Documents Act (Canada), the Electronic Commerce Act, 2000 (Ontario), the Electronic Transaction Acts (British Columbia), the Electronic Transactions Act (Alberta), or any other similar laws based on the Uniform Electronic Commerce Act of the Uniform Law Conference of Canada. The Agent may, in its discretion, require that any such documents and signatures executed electronically or delivered by fax or other electronic transmission be confirmed by a manually-signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature executed electronically or delivered by fax or other electronic transmission. |
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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THIS ELEVENTH AMENDING AGREEMENT has been executed effective the date first written above.
| OBSIDIAN ENERGY LTD., as Borrower | ||
| By: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief | ||
| Financial Officer | ||
[Eleventh Amending Agreement – Obsidian]
| ROYAL BANK OF CANADA, as Agent on behalf of the Lenders | ||
| By: |
(signed) [Name Redacted] | |
| Name: |
[Name Redacted] | |
| Title: |
Manager, Agency | |
| By: |
| |
| Name: |
||
| Title: |
||
[Eleventh Amending Agreement – Obsidian]
| ROYAL BANK OF CANADA, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: |
[Name Redacted] | |
| Title: |
Authorized Signatory | |
| By: |
| |
| Name: |
||
| Title: |
||
[Eleventh Amending Agreement – Obsidian]
| THE BANK OF NOVA SCOTIA, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Director | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Manager | ||
[Eleventh Amending Agreement – Obsidian]
| BANK OF MONTREAL, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Managing Director | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Eleventh Amending Agreement – Obsidian]
| CANADIAN IMPERIAL BANK OF COMMERCE, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Director | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Account Manager | ||
[Eleventh Amending Agreement – Obsidian]
| EXPORT DEVELOPMENT CANADA, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Special Risk Manager | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Special Risks Manager | ||
[Eleventh Amending Agreement – Obsidian]
| ATB FINANCIAL, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Director | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Associate Director | ||
[Eleventh Amending Agreement – Obsidian]
| FÉDÉRATION DES CAISSES DESJARDINS DU QUÉBEC, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Manager | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Eleventh Amending Agreement – Obsidian]
| NATIONAL BANK OF CANADA, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Manager | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Manager | ||
[Eleventh Amending Agreement – Obsidian]
| BUSINESS DEVELOPMENT BANK OF CANADA, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Assistant Vice-President Business Restructuring | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Director | ||
[Eleventh Amending Agreement – Obsidian]
ACKNOWLEDGEMENT:
Obsidian Energy Ltd. (by its former name, Penn West Petroleum Ltd.), 1647456 Alberta Ltd., Penn West Northern Harrier Partnership, Obsidian Energy Partnership (by its former name, Penn West Petroleum), Penn West PROP Holdco Ltd., Penn West PROP Limited Partnership and Penn West Sandhill Crane Ltd. (each a “Guarantor”, and collectively, the “Guarantors”) each hereby acknowledge and consent to the Eleventh Amending Agreement and acknowledge, agree and confirm that the guarantee dated May 18, 2017 (the “Guarantee”), provided by the Guarantors for the benefit of the Lender Secured Parties, and all representations, warranties, covenants and other obligations set forth therein are binding on the Guarantors and continue in full force and effect as a guarantee of all of the Lender Secured Obligations. Each Guarantor hereby restates the terms set forth in the Guarantee to the extent necessary under applicable Law to give effect to the foregoing. The Guarantors hereby further acknowledge and agree that all Security granted by each of the Guarantors to the Agent on behalf of the Lender Secured Parties and others in connection with the Guarantee, the Credit Agreement and any other documents executed and delivered pursuant thereto or in connection therewith, continue in full force and effect, without in any way impairing or derogating from any of the mortgages, pledges, charges, assignments, security for all indebtedness, liabilities and other obligations of the undersigned.
Acknowledged as of the Eleventh Amendment Date.
| OBSIDIAN ENERGY LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief Financial Officer | ||
| PENN WEST NORTHERN HARRIER PARTNERSHIP, by its managing partner, PENN WEST SANDHILL CRANE LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Eleventh Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| OBSIDIAN ENERGY PARTNERSHIP, by its managing partner, OBSIDIAN ENERGY LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief Financial Officer | ||
[Eleventh Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST PROP HOLDCO LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Eleventh Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST PROP LIMITED PARTNERSHIP, by its general partner, PENN WEST PROP HOLDCO LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Eleventh Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST SANDHILL CRANE LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Eleventh Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| 1647456 ALBERTA LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Eleventh Amending Agreement – Obsidian (Guarantor Acknowledgment)]
Exhibit 99.6
Redacted Version
TWELFTH AMENDING AGREEMENT
TO THE OBSIDIAN ENERGY LTD.
AMENDED AND RESTATED CREDIT AGREEMENT
THIS TWELFTH AMENDING AGREEMENT is made effective as of September 4, 2020 (the “Twelfth Amendment Date”),
BETWEEN:
OBSIDIAN ENERGY LTD.
as Borrower
- and -
ROYAL BANK OF CANADA,
THE BANK OF NOVA SCOTIA,
BANK OF MONTREAL,
CANADIAN IMPERIAL BANK OF COMMERCE,
EXPORT DEVELOPMENT CANADA,
ATB FINANCIAL,
FÉDÉRATION DES CAISSES DESJARDINS DU QUÉBEC,
NATIONAL BANK OF CANADA, and
BUSINESS DEVELOPMENT BANK OF CANADA
as Lenders
- and -
ROYAL BANK OF CANADA
as Administrative Agent on behalf of the Lenders
PREAMBLE:
| A. | Pursuant to the Amended and Restated Credit Agreement dated May 18, 2017 as amended by a first amending agreement dated May 10, 2018, a second amending agreement dated December 14, 2018, a third amending agreement dated March 21, 2019, a fourth amending agreement dated May 31, 2019, a fifth amending agreement made effective as of June 28, 2019, a sixth amending agreement made effective as of August 12, 2019, a seventh amending agreement made effective as of February 28, 2020 (the “Seventh Amending Agreement”), an eighth amending agreement made effective as of March 4, 2020, a ninth amending agreement made effective as of March 13, 2020, a tenth amending agreement made effective as of March 27, 2020 and an eleventh amending agreement (the “Eleventh Amending Agreement”) made effective as of June 22, 2020 (as so amended, the “Credit Agreement”), among Obsidian Energy Ltd. (by its former name, Penn West Petroleum Ltd.), as borrower (the “Borrower”), Royal Bank of Canada (“RBC”) and each of the other financial institutions party thereto, as lenders, and RBC, as administrative agent (the “Agent”), the Lenders agreed to provide to the Borrower the Credit Facilities. |
| B. | The Parties wish to amend the Credit Agreement and the Eleventh Amending Agreement on the terms and conditions herein provided. |
AGREEMENT:
NOW THEREFORE in consideration of the premises, the covenants and the agreements herein contained, the Parties agree as follows:
| 1. | Definitions. Capitalized terms used in this Twelfth Amending Agreement will, unless otherwise defined herein, have the meanings attributed to such terms in the Credit Agreement as amended hereby (the “Amended Credit Agreement”). |
| 2. | Amendments to Eleventh Amending Agreement. Effective as of the Twelfth Amendment Date, the Eleventh Amending Agreement is hereby amended as follows: |
| (a) | the second paragraph in Section 2 of the Eleventh Amending Agreement is hereby deleted in its entirety and the following new Section 2.1 is substituted therefor as follows: |
| “2.1 | Revolving Period. The parties hereto hereby confirm and agree that, as of the Eleventh Amendment Date, the Revolving Period is, and therefore the Term Conversion Date shall be, October 31, 2020. Notwithstanding the foregoing set forth in this Section 2.1 of this Agreement or the definition of “Term Period” set forth in the Credit Agreement, the last day of the Term Period shall be November 30, 2021.”; and |
| (b) | Section 3 of the Eleventh Amending Agreement is hereby amended by deleting each reference to “September 15, 2020” where it appears in such Section and to substitute therefor “October 31, 2020”. |
| 3. | Confirmation and Acknowledgement of Revolving Period, Additional Borrowing Base Determination and Payment of Extension Fee due on September 15, 2020. The parties hereto hereby confirm, acknowledge and agree that, pursuant to the Eleventh Amending Agreement, as amended hereby: |
| (a) | the Revolving Period shall end, and therefore the Term Conversion Date shall be, October 31, 2020; |
| (b) | the last day of the Term Period shall be November 30, 2021; |
| (c) | in addition to the determinations of the Borrowing Base set forth in Section 3.10(b) of the Credit Agreement, the Lenders may make an additional determination of the Borrowing Base on October 31, 2020 (the “Additional Borrowing Base Determination”); |
| (d) | the Additional Borrowing Base Determination shall proceed on October 31, 2020 unless all of the Lenders agree otherwise; |
- 2 -
| (e) | the provisions of Section 3.10 of the Credit Agreement shall apply to the Additional Borrowing Base Determination in all respects; |
| (f) | for certainty, the Additional Borrowing Base Determination shall not constitute a Borrowing Base Determination pursuant to Section 3.10(b)(i) of the Credit Agreement; and |
| (g) | [REDACTED] |
| 4. | Amendments to Credit Agreement. Effective as of the Twelfth Amendment Date: |
| (a) | Section 13.1(e)(x) of the Credit Agreement is hereby amended to: |
| (i) | delete “non-legal advisors (including the Borrower’s Financial Advisor)” where it appears therein and to substitute “advisors (including the Borrower’s legal counsel and financial advisor)” therefor; and |
| (ii) | delete “September 2020” where it appears therein and to substitute “October 2020” therefor; and |
| (b) | each reference to “Borrower’s Financial Advisor” where it appears in Section 13.1(e)(xii) of the Credit Agreement and in the definition of “Closing Cash Flow Projection” set forth on Schedule A to the Credit Agreement is, in each case, deleted and “Borrower’s financial advisor” is hereby substituted therefor. |
| 5. | Restrictions on Drawdowns of, Rollovers of, and Conversions into Bankers’ Acceptances. |
| (a) | From and after the Twelfth Amendment Date and notwithstanding any provision to the contrary in the Credit Agreement, the Borrower shall not request, and the Borrower shall not be entitled to make, have or effect: |
| (i) | any Advances by way of Bankers’ Acceptances (or BA Equivalent Loans); |
| (ii) | any Rollover of any outstanding Bankers’ Acceptances (or BA Equivalent Loans); and |
| (iii) | any Conversion of any outstanding Advances into a Bankers’ Acceptance (or BA Equivalent Loan). |
| (b) | Notwithstanding any provision in the Credit Agreement to the contrary, Advances, Rollovers and Conversions of any outstanding Bankers’ Acceptances and BA Equivalent Loans are no longer available and any outstanding Bankers’ Acceptances and BA Equivalent Loans shall, upon maturity date thereof, be automatically converted into Canadian Prime Rate Loans. |
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| 6. | Conditions Precedent. The amendments to the Eleventh Amending Agreement and the Credit Agreement provided for in Sections 2 and 4 of this Twelfth Amending Agreement are only effective upon and are subject to the satisfaction of the following conditions precedent: |
| (a) | the accuracy and completeness in all respects of the Borrower’s representations and warranties in Section 7 hereof; and |
| (b) | Lenders’ counsel, Blake, Cassels & Graydon LLP, and the Financial Advisor shall each have received payment of all then outstanding fees, disbursements and charged expenses of Blake, Cassels & Graydon LLP and the Financial Advisor. |
The foregoing conditions precedent are for the sole benefit of the Agent and the Lenders and may be waived, in whole or in part and with or without further conditions, in the sole discretion of the Agent and the Lenders.
| 7. | Representations and Warranties. To confirm each Lender’s understanding concerning the Borrower and its business, properties and obligations, and to induce the Agent and each Lender to enter into this Twelfth Amending Agreement, the Borrower hereby reaffirms to the Agent and each Lender that, as of the Twelfth Amendment Date, its representations and warranties contained in Section 12.1 of the Credit Agreement, as amended by this Twelfth Amending Agreement, and except to the extent such representations and warranties relate solely to an earlier date, are true and correct in all material respects and additionally represents and warrants as follows on the Twelfth Amendment Date: |
| (a) | it has full corporate power and capacity to enter into this Twelfth Amending Agreement and to perform its obligations hereunder and under the Credit Agreement, as amended by this Twelfth Amending Agreement; |
| (b) | this Twelfth Amending Agreement, and the performance by it of its obligations under the Credit Agreement, as amended by this Twelfth Amending Agreement: |
| (i) | have been duly authorized, executed and delivered by it; and |
| (ii) | do not conflict with or contravene or constitute a default or create a Lien, other than a conflict, contravention, default or Lien which would not reasonably be expected to have a Material Adverse Effect or a Lien which is a Permitted Encumbrance, under: |
| (A) | its constating documents, by-laws, any resolution of its Directors or any shareholders’ or partnership agreement in respect of the Borrower; |
| (B) | any agreement or document to which it is a party or by which any of its property is bound; or |
| (C) | any applicable Law; |
- 4 -
| (c) | the Credit Agreement and the Eleventh Amending Agreement, each as amended by this Twelfth Amending Agreement, each constitutes a valid and binding obligation of the Borrower, and is enforceable against the Borrower in accordance with the terms thereof, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, or similar statutes affecting the enforcement of creditors’ rights generally and by general principles of equity; and |
| (d) | no Default or Event of Default has occurred and is continuing. |
| 8. | Continuing Effect. Each of the parties hereto acknowledges and agrees that the Amended Credit Agreement and all other documents entered into in connection therewith, will be and continue in full force and effect and are hereby confirmed and the rights and obligations of all parties thereunder will not be affected or prejudiced in any manner except as specifically provided herein. The Borrower hereby further acknowledges and agrees that all Security granted by it to the Agent for its own benefit and on behalf of the Lender Secured Parties and others in connection with the Credit Agreement and any other documents executed and delivered pursuant thereto or in connection therewith, including confirmations and acknowledgements thereof, continue in full force and effect, without in any way impairing or derogating from any of the mortgages, pledges, charges, assignments, security interests and covenants therein contained or thereby constituted, as continuing security for all indebtedness, liabilities and other obligations of the Borrower under the Amended Credit Agreement and each other Document to which it is a party. |
| 9. | Expenses. The Borrower will pay or reimburse the Agent and the Lenders, as applicable, for the reasonable out of pocket expenses, including reasonable legal fees and disbursements (on a solicitor and his own client full indemnity basis), enforcement costs and reasonable fees and disbursements of the Financial Advisor, incurred by the Agent and the Lenders, as applicable, in connection with the negotiation, preparation, execution and maintenance of the Amended Credit Agreement and of this Twelfth Amending Agreement. |
| 10. | Counterparts. This Twelfth Amending Agreement may be executed in one or more counterparts (and by different parties hereto in different counterparts), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by fax or other electronic transmission of an executed counterpart of a signature page to this Twelfth Amending Agreement shall be effective as delivery of an original executed counterpart of this Twelfth Amending Agreement. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Twelfth Amending Agreement shall be deemed to include electronic signatures, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including, without limitation, as in provided Parts 2 and 3 of the Personal Information Protection and Electronic Documents Act (Canada), the Electronic Commerce Act, 2000 (Ontario), the Electronic Transaction Acts (British Columbia), the Electronic Transactions Act (Alberta), or any other similar laws based on the Uniform Electronic Commerce Act of the Uniform Law Conference of Canada. The Agent may, in its discretion, require that any such documents and signatures executed electronically or delivered by fax or other electronic transmission be confirmed by a manually-signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature executed electronically or delivered by fax or other electronic transmission. |
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
- 5 -
THIS TWELFTH AMENDING AGREEMENT has been executed effective the date first written above.
| OBSIDIAN ENERGY LTD., as Borrower | ||
| By: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief | ||
| Financial Officer | ||
[Twelfth Amending Agreement – Obsidian]
| ROYAL BANK OF CANADA, as Agent on behalf of the Lenders | ||
| By: |
(signed) [Name Redacted] | |
| Name: |
[Name Redacted] | |
| Title: |
Manager, Agency | |
| By: |
| |
| Name: |
||
| Title: |
||
[Twelfth Amending Agreement – Obsidian]
| ROYAL BANK OF CANADA, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: |
[Name Redacted] | |
| Title: |
Authorized Signatory | |
| By: |
| |
| Name: |
||
| Title: |
||
[Twelfth Amending Agreement – Obsidian]
| THE BANK OF NOVA SCOTIA, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Director | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Manager | ||
[Twelfth Amending Agreement – Obsidian]
| BANK OF MONTREAL, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Managing Director | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Twelfth Amending Agreement – Obsidian]
| CANADIAN IMPERIAL BANK OF COMMERCE, as Lender | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Director | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Account Manager | ||
[Twelfth Amending Agreement – Obsidian]
| EXPORT DEVELOPMENT CANADA, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Special Risk Manager | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Special Risks Manager | ||
[Twelfth Amending Agreement – Obsidian]
| ATB FINANCIAL, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Director | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Associate Director | ||
[Twelfth Amending Agreement – Obsidian]
| FÉDÉRATION DES CAISSES DESJARDINS DU QUÉBEC, as Lender | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Manager | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Twelfth Amending Agreement – Obsidian]
| NATIONAL BANK OF CANADA, as Lender | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Manager | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Manager | ||
[Twelfth Amending Agreement – Obsidian]
| BUSINESS DEVELOPMENT BANK OF CANADA, as Lender | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Assistant Vice-President | ||
| Business Restructuring | ||
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Director | ||
[Twelfth Amending Agreement – Obsidian]
ACKNOWLEDGEMENT:
Obsidian Energy Ltd. (by its former name, Penn West Petroleum Ltd.), 1647456 Alberta Ltd., Penn West Northern Harrier Partnership, Obsidian Energy Partnership (by its former name, Penn West Petroleum), Penn West PROP Holdco Ltd., Penn West PROP Limited Partnership and Penn West Sandhill Crane Ltd. (each a “Guarantor”, and collectively, the “Guarantors”) each hereby acknowledge and consent to the Twelfth Amending Agreement and acknowledge, agree and confirm that the guarantee dated May 18, 2017 (the “Guarantee”), provided by the Guarantors for the benefit of the Lender Secured Parties, and all representations, warranties, covenants and other obligations set forth therein are binding on the Guarantors and continue in full force and effect as a guarantee of all of the Lender Secured Obligations. Each Guarantor hereby restates the terms set forth in the Guarantee to the extent necessary under applicable Law to give effect to the foregoing. The Guarantors hereby further acknowledge and agree that all Security granted by each of the Guarantors to the Agent on behalf of the Lender Secured Parties and others in connection with the Guarantee, the Credit Agreement and any other documents executed and delivered pursuant thereto or in connection therewith, continue in full force and effect, without in any way impairing or derogating from any of the mortgages, pledges, charges, assignments, security for all indebtedness, liabilities and other obligations of the undersigned.
Acknowledged as of the Twelfth Amendment Date.
| OBSIDIAN ENERGY LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief Financial Officer | ||
| PENN WEST NORTHERN HARRIER | ||
| PARTNERSHIP, by its managing partner, | ||
| PENN WEST SANDHILL CRANE LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Twelfth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| OBSIDIAN ENERGY PARTNERSHIP, by its managing partner, OBSIDIAN ENERGY LTD. | ||
| Per: | (signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief Financial Officer | ||
[Twelfth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST PROP HOLDCO LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Twelfth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST PROP LIMITED PARTNERSHIP, by its general partner, PENN WEST PROP HOLDCO LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Twelfth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST SANDHILL CRANE LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Twelfth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| 1647456 ALBERTA LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Twelfth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
Exhibit 99.7
Redacted Version
THIRTEENTH AMENDING AGREEMENT
TO THE OBSIDIAN ENERGY LTD.
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRTEENTH AMENDING AGREEMENT is made effective as of October 29, 2020 (the “Thirteenth Amendment Date”),
BETWEEN:
OBSIDIAN ENERGY LTD.
as Borrower
- and -
ROYAL BANK OF CANADA,
THE BANK OF NOVA SCOTIA,
BANK OF MONTREAL,
CANADIAN IMPERIAL BANK OF COMMERCE,
EXPORT DEVELOPMENT CANADA,
ATB FINANCIAL,
FÉDÉRATION DES CAISSES DESJARDINS DU QUÉBEC,
NATIONAL BANK OF CANADA, and
BUSINESS DEVELOPMENT BANK OF CANADA
as Lenders
- and -
ROYAL BANK OF CANADA
as Administrative Agent on behalf of the Lenders
PREAMBLE:
| A. | Pursuant to the Amended and Restated Credit Agreement dated May 18, 2017 as amended by a first amending agreement dated May 10, 2018, a second amending agreement dated December 14, 2018, a third amending agreement dated March 21, 2019, a fourth amending agreement dated May 31, 2019, a fifth amending agreement made effective as of June 28, 2019, a sixth amending agreement made effective as of August 12, 2019, a seventh amending agreement made effective as of February 28, 2020 (the “Seventh Amending Agreement”), an eighth amending agreement made effective as of March 4, 2020, a ninth amending agreement made effective as of March 13, 2020, a tenth amending agreement made effective as of March 27, 2020, an eleventh amending agreement (the “Eleventh Amending Agreement”) made effective as of June 22, 2020 and a twelfth amending agreement made effective as of September 3, 2020 (as so amended, the “Credit Agreement”), among Obsidian Energy Ltd. (by its former name, Penn West Petroleum Ltd.), as borrower (the “Borrower”), Royal Bank of Canada (“RBC”) and each of the other financial institutions party thereto, as lenders, and RBC, as administrative agent (the “Agent”), the Lenders agreed to provide to the Borrower the Credit Facilities. |
| B. | The Parties wish to amend the Credit Agreement and the Eleventh Amending Agreement on the terms and conditions herein provided. |
AGREEMENT:
NOW THEREFORE in consideration of the premises, the covenants and the agreements herein contained, the Parties agree as follows:
| 1. | Definitions. Capitalized terms used in this Thirteenth Amending Agreement will, unless otherwise defined herein, have the meanings attributed to such terms in the Credit Agreement as amended hereby (the “Amended Credit Agreement”). |
| 2. | Amendments to Eleventh Amending Agreement. Effective as of the Thirteenth Amendment Date, the Eleventh Amending Agreement is hereby amended as follows: |
| (a) | Section 2.1 of the Eleventh Amending Agreement is hereby deleted in its entirety and the following new Section 2.1 is substituted therefor as follows: |
| “2.1 | Revolving Period. The parties hereto hereby confirm and agree that, as of the Eleventh Amendment Date, the Revolving Period is, and therefore the Term Conversion Date shall be, January 29, 2021. Notwithstanding the foregoing set forth in this Section 2.1 of this Agreement or the definition of “Term Period” set forth in the Credit Agreement, the last day of the Term Period shall be November 30, 2021.”; and |
| (b) | Section 3 of the Eleventh Amending Agreement is hereby amended by deleting each reference to “October 31, 2020” where it appears in such Section and to substitute therefor “January 29, 2021”. |
| 3. | Confirmation and Acknowledgement of Revolving Period and Additional Borrowing Base Determination. The parties hereto hereby confirm, acknowledge and agree that, pursuant to the Eleventh Amending Agreement, as amended hereby: |
| (a) | the Revolving Period shall end, and therefore the Term Conversion Date shall be, January 29, 2021; |
| (b) | the last day of the Term Period shall be November 30, 2021; |
| (c) | in addition to the determinations of the Borrowing Base set forth in Section 3.10(b) of the Credit Agreement, the Lenders may make an additional determination of the Borrowing Base on January 29, 2021 (the “Additional Borrowing Base Determination”); |
| (d) | the Additional Borrowing Base Determination shall proceed on January 29, 2021 unless all of the Lenders agree otherwise; |
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| (e) | the provisions of Section 3.10 of the Credit Agreement shall apply to the Additional Borrowing Base Determination in all respects; and |
| (f) | for certainty, the Additional Borrowing Base Determination shall not constitute a Borrowing Base Determination pursuant to Section 3.10(b)(i) of the Credit Agreement. |
| 4. | Amendment to Credit Agreement. Effective as of the Thirteenth Amendment Date, Section 13.1(e)(x) of the Credit Agreement is hereby amended to delete “October 2020” where it appears therein and to substitute “January 2021” therefor. |
| 5. | November 2020 Borrowing Base Date. The parties hereto hereby agree that the determination of the Borrowing Base that is scheduled to occur by November 30, 2020 in accordance with Section 3.10(b) of the Credit Agreement shall not proceed. The foregoing is neither an affirmation nor redetermination of the current Borrowing Base; however, the previous Borrowing Base of $550,000,000 shall continue to apply for purposes of the limitation on Interest Rate Swap Contracts pursuant to Section 13.2(c)(iii) of the Credit Agreement until the Borrowing Base is redetermined by the Lenders. For certainty, the next scheduled determination of the Borrowing Base is to occur on or before May 31, 2021 in accordance with Section 3.10(b) of the Credit Agreement. |
| 6. | Conditions Precedent. The amendments to the Eleventh Amending Agreement and the Credit Agreement provided for in Sections 2 and 4 of this Thirteenth Amending Agreement and the other provisions of this Thirteenth Amending Agreement are only effective upon and are subject to the satisfaction of the following conditions precedent: |
| (a) | the accuracy and completeness in all respects of the Borrower’s representations and warranties in Section 8 hereof; |
| (b) | payment to the Agent (on behalf of the Lenders) of the fee required pursuant to Section 7 hereof; and |
| (c) | Lenders’ counsel, Blake, Cassels & Graydon LLP, and the Financial Advisor shall each have received payment of all then outstanding fees, disbursements and charged expenses of Blake, Cassels & Graydon LLP and the Financial Advisor. |
The foregoing conditions precedent are for the sole benefit of the Agent and the Lenders and may be waived, in whole or in part and with or without further conditions, in the sole discretion of the Agent and the Lenders.
| 7. | Amendment Fee. The Borrower agrees to pay to the Agent, on account of the Lenders, an amendment fee in an amount in Canadian Dollars equal to [REDACTED] bps of the Commitment Amount in connection with the amendments to the Eleventh Amending Agreement and the Credit Agreement provided for in Sections 2 and 4 of this Thirteenth Amending Agreement and the other provisions to this Thirteenth Amending Agreement contemplated hereby, such amendment fee payable concurrently with the execution and delivery of this Thirteenth Amending Agreement. |
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| 8. | Representations and Warranties. To confirm each Lender’s understanding concerning the Borrower and its business, properties and obligations, and to induce the Agent and each Lender to enter into this Thirteenth Amending Agreement, the Borrower hereby reaffirms to the Agent and each Lender that, as of the Thirteenth Amendment Date, its representations and warranties contained in Section 12.1 of the Credit Agreement, as amended by this Thirteenth Amending Agreement, and except to the extent such representations and warranties relate solely to an earlier date, are true and correct in all material respects and additionally represents and warrants as follows on the Thirteenth Amendment Date: |
| (a) | it has full corporate power and capacity to enter into this Thirteenth Amending Agreement and to perform its obligations hereunder and under the Credit Agreement, as amended by this Thirteenth Amending Agreement; |
| (b) | this Thirteenth Amending Agreement, and the performance by it of its obligations under the Credit Agreement, as amended by this Thirteenth Amending Agreement: |
| (i) | have been duly authorized, executed and delivered by it; and |
| (ii) | do not conflict with or contravene or constitute a default or create a Lien, other than a conflict, contravention, default or Lien which would not reasonably be expected to have a Material Adverse Effect or a Lien which is a Permitted Encumbrance, under: |
| (A) | its constating documents, by-laws, any resolution of its Directors or any shareholders’ or partnership agreement in respect of the Borrower; |
| (B) | any agreement or document to which it is a party or by which any of its property is bound; or |
| (C) | any applicable Law; |
| (c) | the Credit Agreement and the Eleventh Amending Agreement, each as amended by this Thirteenth Amending Agreement, each constitutes a valid and binding obligation of the Borrower, and is enforceable against the Borrower in accordance with the terms thereof, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, or similar statutes affecting the enforcement of creditors’ rights generally and by general principles of equity; and |
| (d) | no Default or Event of Default has occurred and is continuing. |
| 9. | Continuing Effect. Each of the parties hereto acknowledges and agrees that the Amended Credit Agreement and all other documents entered into in connection therewith, will be and continue in full force and effect and are hereby confirmed and the rights and obligations of all parties thereunder will not be affected or prejudiced in any manner except as specifically provided herein. The Borrower hereby further acknowledges and agrees that all Security granted by it to the Agent for its own benefit and on behalf of the Lender Secured Parties and others in connection with the Credit Agreement and any other documents executed and delivered pursuant thereto or in connection therewith, including confirmations and acknowledgements thereof, continue in full force and effect, without in any way impairing or derogating from any of the mortgages, pledges, charges, assignments, security interests and covenants therein contained or thereby constituted, as continuing security for all indebtedness, liabilities and other obligations of the Borrower under the Amended Credit Agreement and each other Document to which it is a party. |
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| 10. | Expenses. The Borrower will pay or reimburse the Agent and the Lenders, as applicable, for the reasonable out of pocket expenses, including reasonable legal fees and disbursements (on a solicitor and his own client full indemnity basis), enforcement costs and reasonable fees and disbursements of the Financial Advisor, incurred by the Agent and the Lenders, as applicable, in connection with the negotiation, preparation, execution and maintenance of the Amended Credit Agreement and of this Thirteenth Amending Agreement. |
| 11. | Counterparts. This Thirteenth Amending Agreement may be executed in one or more counterparts (and by different parties hereto in different counterparts), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by fax or other electronic transmission of an executed counterpart of a signature page to this Thirteenth Amending Agreement shall be effective as delivery of an original executed counterpart of this Thirteenth Amending Agreement. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Thirteenth Amending Agreement shall be deemed to include electronic signatures, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including, without limitation, as in provided Parts 2 and 3 of the Personal Information Protection and Electronic Documents Act (Canada), the Electronic Commerce Act, 2000 (Ontario), the Electronic Transaction Acts (British Columbia), the Electronic Transactions Act (Alberta), or any other similar laws based on the Uniform Electronic Commerce Act of the Uniform Law Conference of Canada. The Agent may, in its discretion, require that any such documents and signatures executed electronically or delivered by fax or other electronic transmission be confirmed by a manually-signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature executed electronically or delivered by fax or other electronic transmission. |
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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THIS THIRTEENTH AMENDING AGREEMENT has been executed effective the date first written above.
| OBSIDIAN ENERGY LTD., as Borrower | ||
| By: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief Financial Officer | ||
[Thirteenth Amending Agreement – Obsidian]
| ROYAL BANK OF CANADA, as Agent on behalf of the Lenders | ||
| By: |
(signed) [Name Redacted] | |
| Name: |
[Name Redacted] | |
| Title: |
Manager, Agency | |
| By: |
N/A | |
| Name: |
||
| Title: |
||
[Thirteenth Amending Agreement – Obsidian]
| ROYAL BANK OF CANADA, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: |
[Name Redacted] | |
| Title: |
Authorized Signatory | |
| By: |
| |
| Name: |
||
| Title: |
||
[Thirteenth Amending Agreement – Obsidian]
| THE BANK OF NOVA SCOTIA, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Director | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Vice President | ||
[Thirteenth Amending Agreement – Obsidian]
| BANK OF MONTREAL, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Managing Director | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Thirteenth Amending Agreement – Obsidian]
| CANADIAN IMPERIAL BANK OF COMMERCE, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Account Manager | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Director | ||
[Thirteenth Amending Agreement – Obsidian]
| EXPORT DEVELOPMENT CANADA, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Special Risks Manager | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Special Risk Manager | ||
[Thirteenth Amending Agreement – Obsidian]
| ATB FINANCIAL, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: |
[Name Redacted] | |
| Title: |
Senior Director | |
| By: |
(signed) [Name Redacted] | |
| Name: |
[Name Redacted] | |
| Title: |
Associate Director | |
[Thirteenth Amending Agreement – Obsidian]
| NATIONAL BANK OF CANADA, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Manager | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Manager | ||
[Thirteenth Amending Agreement – Obsidian]
| BUSINESS DEVELOPMENT BANK OF CANADA, as Lender | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Analyst, Business Restructuring Unit | ||
| By: |
(signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Assistant Vice-President Business Restructuring | ||
[Thirteenth Amending Agreement – Obsidian]
ACKNOWLEDGEMENT:
Obsidian Energy Ltd. (by its former name, Penn West Petroleum Ltd.), 1647456 Alberta Ltd., Penn West Northern Harrier Partnership, Obsidian Energy Partnership (by its former name, Penn West Petroleum), Penn West PROP Holdco Ltd., Penn West PROP Limited Partnership and Penn West Sandhill Crane Ltd. (each a “Guarantor”, and collectively, the “Guarantors”) each hereby acknowledge and consent to the Thirteenth Amending Agreement and acknowledge, agree and confirm that the guarantee dated May 18, 2017 (the “Guarantee”), provided by the Guarantors for the benefit of the Lender Secured Parties, and all representations, warranties, covenants and other obligations set forth therein are binding on the Guarantors and continue in full force and effect as a guarantee of all of the Lender Secured Obligations. Each Guarantor hereby restates the terms set forth in the Guarantee to the extent necessary under applicable Law to give effect to the foregoing. The Guarantors hereby further acknowledge and agree that all Security granted by each of the Guarantors to the Agent on behalf of the Lender Secured Parties and others in connection with the Guarantee, the Credit Agreement and any other documents executed and delivered pursuant thereto or in connection therewith, continue in full force and effect, without in any way impairing or derogating from any of the mortgages, pledges, charges, assignments, security for all indebtedness, liabilities and other obligations of the undersigned.
Acknowledged as of the Thirteenth Amendment Date.
| OBSIDIAN ENERGY LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief Financial Officer | ||
[Thirteenth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST NORTHERN HARRIER PARTNERSHIP, by its managing partner, PENN WEST SANDHILL CRANE LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Thirteenth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| OBSIDIAN ENERGY PARTNERSHIP, by its managing partner, OBSIDIAN ENERGY LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Senior Vice President and Chief Financial Officer | ||
[Thirteenth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST PROP HOLDCO LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Thirteenth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST PROP LIMITED PARTNERSHIP, by its general partner, PENN WEST PROP HOLDCO LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Thirteenth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| PENN WEST SANDHILL CRANE LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Thirteenth Amending Agreement – Obsidian (Guarantor Acknowledgment)]
| 1647456 ALBERTA LTD. | ||
| Per: |
(signed) “Peter D. Scott” | |
| Peter D. Scott | ||
| Chief Financial Officer | ||
[Thirteenth Amending Agreement – Obsidian (Guarantor Acknowledgment)]