Berkshire Hathaway Energy 10-Q 2016 Q2 Quarterly report

EXHIBIT 10.4

EXECUTION VERSION

FIRST AMENDING AGREEMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT

dated as of November 20, 2015

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

as Borrower,

- and -

ALTALINK INVESTMENT MANAGEMENT LTD.,

as General Partner,

- and -

ROYAL BANK OF CANADA,

as Administrative Agent of the Lenders, and as Lender,

- and -

THE LENDERS PARTY HERETO,

as Lenders

LEGAL_1:37120235.4

FIRST AMENDING AGREEMENT TO THE AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 20, 2015, among AltaLink Investment Management Ltd., in its capacity as general partner of AltaLink Investments, L.P., as Borrower, AltaLink Investment Management Ltd., as General Partner, Royal Bank of Canada, as Agent of the Lenders (the “Agent”), and the Lenders party hereto.

RECITALS

WHEREAS AltaLink Investment Management Ltd., in its capacity as general partner of AltaLink Investments, L.P., as Borrower, Royal Bank of Canada, as Agent of the Lenders, and the Lenders are parties to an Amended and Restated Credit Agreement made as of July 30, 2015 (the “Original Credit Agreement”);

AND WHEREAS the Borrower, the General Partner, the Lenders and the Agent have agreed to amend certain provisions of the Original Credit Agreement in the manner and on the terms and conditions provided for herein.

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

ARTICLE 1
DEFINITIONS

1.1 Definitions

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

ARTICLE 2
AMENDMENT

2.1 Amendment to Section 10.5 – Notices. The Original Credit Agreement is hereby amended by deleting Section 10.5 in its entirety and substituting the following therefor:

“Notices. The Borrower shall promptly give notice to the Agent of:

(a) the occurrence of any Default or Event of Default;

(b) the commencement of, or receipt by the Borrower of a written threat of, any action, suit or proceeding against or affecting the Borrower before any Governmental Authority which, individually or in the aggregate, has, or has any reasonable likelihood of having, a Material Adverse Effect, and such further information in respect thereof as the Agent may request from time to time;

(c) any notice of any violation or administrative or judicial complaint or order having been filed or, to the Borrower’s knowledge, about to be filed against the Borrower which has, or has any reasonable likelihood of having, a Material Adverse Effect;

LEGAL_1:37120235.4

- 2 -

(d) any notice from any Governmental Authority or any other Person alleging that the Borrower is or may be subject to any Environmental Liability which has, or has any reasonable likelihood of having, a Material Adverse Effect;

(e) any notice of any material violation of Applicable Utilities Legislation;

(f) the occurrence or non-occurrence of any other event which has, or has a reasonable likelihood of having, a Material Adverse Effect;

(g) any changes in the ownership structure to the Borrower; and

(h) any notice of a change in rating to the Senior Bonds (as such term is defined in the Master Trust Indenture) by any of the Rating Agencies.”

ARTICLE 3
CONDITIONS PRECEDENT

3.1 Conditions Precedent

This First Amending Agreement shall become effective when:

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

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

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

ARTICLE 4
REPRESENTATIONS AND WARRANTIES

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

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

ARTICLE 5
MISCELLANEOUS

5.1 No Other Amendments, Waivers or Consents

LEGAL_1:37120235.4

- 3 -

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

5.2 Time

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

5.3 Governing Law

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

5.4 Successors and Assigns

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

5.5 Counterparts

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

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

LEGAL_1:37120235.4

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

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

AltaLink – First Amending Agreement to Amended and Restated Credit Agreement

ALTALINK INVESTMENT MANAGEMENT LTD.
By:	/s/ Jeffrey A. Austin
	Name: Jeffrey A. Austin
	Title: Director
By:	/s/ Calvin D. Haack
	Name: Calvin D. Haack
	Title: Director

AltaLink – First Amending Agreement to Amended and Restated Credit Agreement

ROYAL BANK OF CANADA, as Agent
By:	/s/ Yvonne Brazier
	Name: Yvonne Brazier
	Title: Manager, Agency

AltaLink – First Amending Agreement to Amended and Restated Credit Agreement

ROYAL BANK OF CANADA, as Lender
By:	/s/ Timothy P. Murray
	Name: Timothy P. Murray
	Title: Authorized Signatory
By:
	Name:
	Title:

AltaLink – First Amending Agreement to Amended and Restated Credit Agreement

BANK OF MONTREAL, as Lender
By:	/s/ Carol McDonald
	Name: Carol McDonald
	Title: Director
By:	/s/ Darren Thomas
	Name: Darren Thomas
	Title: Associate

AltaLink – First Amending Agreement to Amended and Restated Credit Agreement

ALBERTA TREASURY BRANCHES, as Lender
By:	/s/ Tim Poole
	Name: Tim Poole
	Title: Senior Director
By:	/s/ Trevor Guinard
	Name: Trevor Guinard
	Title: Associate Director Energy

AltaLink – First Amending Agreement to Amended and Restated Credit Agreement

BANK OF NOVA SCOTIA, as Lender
By:	/s/ Bradley Walker
	Name: Bradley Walker
	Title: Director
By:	/s/ Matthew Hartnoll
	Name: Matthew Hartnoll
	Title: Associate Director

AltaLink – First Amending Agreement to Amended and Restated Credit Agreement

NATIONAL BANK OF CANADA, as Lender
By:	/s/ Elin Wade
	Name: Elin Wade
	Title: Authorized Signatory
By:	/s/ Mark Williamson
	Name: Mark Williamson
	Title: Authorized Signatory

AltaLink – First Amending Agreement to Amended and Restated Credit Agreement