Canada
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001-01342
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98-0355078
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(State or other jurisdiction
of incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification No.) |
Exhibit No.
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Exhibit Description
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Exhibit 10.1
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Fifth Amending Agreement, dated as of June 8, 2018, amending the Credit Agreement, dated September 26, 2014, between Canadian Pacific Railway Company, as Borrower, Canadian Pacific Railway Limited, as Covenantor, Royal Bank of Canada, as Administrative Agent, and the various Lenders party thereto.
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Dated: June 8, 2018
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CANADIAN PACIFIC RAILWAY LIMITED
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By:
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/s/ Scott Cedergren
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Name:
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Scott Cedergren
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Title:
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Assistant Corporate Secretary
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Exhibit No.
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Exhibit Description
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(a)
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allocating the 5 Year Commitment of the Withdrawing Lender to certain 5 Year Lenders such that the 5 Year Commitment of each 5 Year Lender is as set out in Exhibit "A" attached hereto;
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(b)
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increasing the Swingline Commitment to U.S.$100,000,000 with Bank of Montreal being added as a 5 Year Swingline Lender having a Swingline Commitment of U.S.$50,000,000. The definition of 5 Year Swingline Lender and all provisions of the Credit Agreement related to the 5 Year Swingline Facility shall be read, construed and interpreted in all respects to give effect to the fact there are two 5 Year Swingline Lenders each having a Swingline Commitment and that Swingline Advances may be requested from time to time by the Borrowers from either or both 5 Year Swingline Lenders, as applicable;
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(c)
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increasing the 5 Year Fronting Documentary Credit Commitment of Bank of Montreal to U.S.$110,000,000;
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(d)
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for certainty, replacing Schedule 1 to the Credit Agreement with Exhibit "A" attached hereto;
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(e)
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amending Section 2.2(d)(ii) to provide that the Commitment in respect of the 5 Year Facility may be increased, in the aggregate, by not more than U.S.$1,000,000,000;
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(f)
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amending the definition of Capitalized Lease Obligation to add the following at the end of such definition:
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(g)
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amending of the definition of Operating Leases to delete the same in its entirety and replace it with the following:
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(h)
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amending Section 2.12 to add the following as Section 2.12(f):
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"(f)
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Each of the Borrowers and the Covenantor:
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(i)
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acknowledges and confirms that: (A) this Agreement, including Sections 2.12 and 11.15 hereof and the constituent definitions herein and under the other Credit Documents relating to interest and other amounts payable hereunder and thereunder, satisfies the requirements of section 4 of the
Interest Act
(Canada) to the extent that section 4 of the
Interest Act
(Canada) applies to the expression, statement or calculation of any rate of interest or other rate per annum hereunder or under any other Credit Document; and (B) they are each able to calculate the yearly rate or percentage of interest payable under any Credit Document based on the methodology set out herein and under the other Credit Documents, including Sections 2.12 and 11.15 and the constituent definitions herein and under the other Credit Documents relating to interest and other amounts payable hereunder and thereunder; and
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(ii)
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irrevocably agrees not to, and agrees to cause each of its Designated Subsidiaries not to, plead or assert, whether by way of defence or otherwise, in any proceeding relating to the Credit Documents, that the interest payable under the Credit Documents and the calculation thereof has not been adequately disclosed to the Borrowers, the Covenantor or any Designated Subsidiary, whether pursuant to section 4 of the
Interest Act
(Canada) or any other applicable law or legal principle." and
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(i)
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amending Section 7.1 to add the following as Section 7.1(n):
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(i)
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This Agreement, including Sections 2.12 and 11.15 hereof and the constituent definitions herein and under the other Credit Documents relating to interest and other amounts payable hereunder and thereunder, satisfies the requirements of section 4 of the
Interest Act
(Canada) to the extent that section 4 of the
Interest Act
(Canada) applies to the expression, statement or calculation of any rate of interest or other rate per annum hereunder or under any other Credit Document; and
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(ii)
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the Covenantor, each Borrower and each Designated Subsidiary are each able to calculate the yearly rate or percentage of interest payable under any Credit Document based on the methodology set out herein and under the other Credit Documents, including Sections 2.12 and 11.15 hereof and the constituent definitions herein and under the other Credit Documents relating to interest and other amounts payable hereunder and thereunder."
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(a)
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there exists no Default or Event of Default; and
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(b)
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the representations and warranties contained in Section 7.1 of the Credit Agreement (other than any representations and warranties which expressly speak of an earlier date, and with this Agreement being a Credit Document and references to the Credit Agreement being deemed to be references to the Amended Credit Agreement) are true and correct.
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(a)
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the Borrower shall deliver or cause to be delivered to the Agent an executed copy of this Agreement for each Lender;
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(b)
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the Agent has received a withdrawal letter from the Withdrawing Lender in a form satisfactory to the Agent and the Borrower (each acting reasonably); and
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(c)
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each Lender shall have been paid all fees as have been agreed to with the Borrower in respect of this Agreement.
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CANADIAN PACIFIC RAILWAY COMPANY
, as Borrower
Per:
/s/ Pramod Bhatia
Name: Pramod Bhatia
Title: Treasurer
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CANADIAN PACIFIC RAILWAY LIMITED
, as Covenantor
Per:
/s/ Pramod Bhatia
Name: Pramod Bhatia
Title: Treasurer
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THE ADMINISTRATIVE AGENT
ROYAL BANK OF CANADA
Per:
/s/ Susan Khokher
Susan Khokher
Authorized Signatory
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THE LENDERS
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ROYAL BANK OF CANADA
Per:
/s/ Tim VandeGriend
Tim VandeGriend
Authorized Signatory
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BARCLAYS BANK PLC
Per:
/s/ Craig Malloy
Craig Malloy
Director
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MORGAN STANLEY BANK, N.A.
Per:
/s/ Michael King
Michael King
Authorized Signatory
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MUFG BANK, LTD., CANADA BRANCH
Per:
/s/ Catherine Siu
Catherine Siu
Director
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CITIBANK, N.A., Canadian Branch
Per:
/s/ Brian Delaney
Brian Delaney
Authorized Signatory
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BANK OF AMERICA, N.A., CANADA BRANCH
Per:
/s/ Marc Ahlers
Marc Ahlers
Director
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BANK OF MONTREAL
Per:
/s/ Jeff Cowan
Jeff Cowan
Vice President
Per:
/s/ Carol McDonald
Carol McDonald
Managing Director
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THE BANK OF NOVA SCOTIA
Per:
/s/ Michael Linder
Michael Linder
Director
Per:
/s/ Jonathan Leach
Jonathan Leach
Associate
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CANADIAN IMPERIAL BANK OF COMMERCE
Per:
/s/ Emma Johnson
Emma Johnson
Director
Per:
/s/ Stephen Redding
Stephen Redding
Managing Director
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WELLS FARGO BANK, N.A., CANADIAN BRANCH
Per:
/s/ Marc-Philippe Piché
Marc-Philippe Piché
Regional Vice President
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HSBC BANK CANADA
Per:
/s/ Jason Lang
Jason Lang
Director, Global Banking
Per:
/s/ Adam Lamb
Adam Lamb
VP, Banking
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ATB FINANCIAL
Per:
/s/ Maximiliano Herrera
Maximiliano Herrera
Director
Per:
/s/ Christopher Hamel
Christopher Hamel
Associate Director
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SUMITOMO MITSUI BANKING CORPORATION, CANADA BRANCH
Per:
/s/ Steve Nishimura
Steve Nishimura
Authorized Signatory
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FÉDÉRATION DES CAISSES DESJARDINS DU QUÉBEC
Per:
/s/ Oliver Sumugod
Oliver Sumugod
Director
Per:
/s/ Matt van Remmen
Matt van Remmen
Managing Director
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EXPORT DEVELOPMENT CANADA
Per:
/s/ Andrés Navarro
Andrés Navarro
Senior Associate
Per:
/s/ Richard Leong
Richard Leong
Senior Financing Manager
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Lender
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5 Year Commitment
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5 Year Fronting Documentary
Commitment
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5 Year Swingline
Commitment
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Royal Bank of Canada
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$82,500,000
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$110,000,000
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$50,000,000
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Barclays Bank plc
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$82,500,000
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Morgan Stanley Bank, N.A.
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$32,500,000
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MUFG Bank, Ltd., Canada Branch
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$50,000,000
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Citibank, N.A., Canadian Branch
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$82,500,000
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Bank of America, N.A., Canada Branch
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$82,500,000
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Bank of Montreal
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$82,500,000
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$110,000,000
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$50,000,000
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The Bank of Nova Scotia
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$82,500,000
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$40,000,000
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Canadian Imperial Bank of Commerce
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$82,500,000
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$40,000,000
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Wells Fargo Bank N.A., Canadian Branch
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$82,500,000
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HSBC Bank Canada
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$82,500,000
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Fédération des caisses Desjardins du Québec
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$43,750,000
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Export Development Canada
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$43,750,000
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ATB Financial
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$43,750,000
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$30,000,000
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Sumitomo Mitsui Banking Corporation, Canada Branch
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$43,750,000
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_________________
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________________
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_______________
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U.S. $1,000,000,000
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U.S. $330,000,000
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U.S. $100,000,000
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