EXHIBIT 4.45
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EXECUTION COPY
THIRD AMENDING AGREEMENT
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THIS AGREEMENT dated effective as of July 29, 2003.
BETWEEN:
NEXEN INC., a corporation subsisting under the laws of Canada
(hereinafter referred to as the "BORROWER"),
OF THE FIRST PART,
- and -
THE FINANCIAL INSTITUTIONS SET FORTH ON THE SIGNATURE PAGE
HEREOF UNDER THE HEADING "LENDERS:" (hereinafter collectively
referred to as the "Lenders" and sometimes individually
referred to as a "Lender"),
OF THE SECOND PART,
- and -
THE TORONTO-DOMINION BANK, a Canadian chartered bank, as agent
of the Lenders (hereinafter referred to as the "AGENT"),
OF THE THIRD PART.
WHEREAS the parties hereto entered into the Credit Agreement;
AND WHEREAS the parties hereto have agreed to amend and supplement
certain provisions of the Credit Agreement as set out herein;
AND WHEREAS the Lenders have agreed that the Agent execute this
Agreement on their behalf;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
covenants and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby conclusively
acknowledged by each of the parties hereto, the parties hereto covenant and
agree as follows:
1.
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1. INTERPRETATION
1.1 In this Agreement and the recitals hereto, unless something in the
subject matter or context is inconsistent therewith:
"AGREEMENT" means this agreement, as amended, modified, supplemented or
restated from time to time; and
"CREDIT AGREEMENT" means the Restated Credit Agreement among the
parties hereto originally made as of December 29, 1988 and amended and
restated as of November 17, 2000, as amended by the First Amending
Agreement made as of August 1, 2001 and by the Second Amending
Agreement made as of July 31, 2002 and as otherwise amended,
supplemented, modified or restated from time to time.
1.2 Capitalized terms used herein without express definition shall have the
same meanings herein as are ascribed thereto in the Credit Agreement.
1.3 The division of this Agreement into Sections and the insertion of
headings are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement. The terms "this Agreement",
"hereof", "hereunder" and similar expressions refer to this Agreement and not to
any particular Section or other portion hereof and include any agreements
supplemental hereto.
1.4 This Agreement shall be governed by and construed in accordance with
the laws of the Province of Alberta and federal laws of Canada applicable
therein.
2. AMENDMENTS
The Credit Agreement is hereby amended as follows:
(a) the definition of "Credit Facility" in Section 1.1 is hereby
amended by deleting "$400,000,000" and substituting therefor
"$410,000,000";
(b) the definition of "Maturity Date" in Section 1.1 is hereby
amended by deleting the word "fourth" in the second line and
substituting therefor the word "third"; and
(c) Clause (a) of Section 2.17 is amended as follows:
(i) by deleting the number "5" in the second line and
substituting therefor the number "4"; and
(ii) by deleting the number "4" in the tenth line and
substituting therefor the number "3".
3. ADDITION OF BNP PARIBAS AS LENDER
3.1 BNP PARIBAS AS LENDER. The parties hereto hereby confirm and agree
that, from and after the date hereof, BNP Paribas (Canada) ("BNP Paribas") shall
be a Lender for all purposes
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of the Credit Agreement and the other Documents and all references therein to
"Lenders" or "a Lender" shall be deemed to include BNP Paribas.
3.2 BNP PARIBAS COMMITMENT. The parties hereto hereby confirm and agree
that, from and after the date hereof, the Commitment of BNP Paribas shall be
Cdn. $50,000,000.
3.3 NOVATION OF BNP PARIBAS. BNP Paribas hereby agrees that it will be
bound by the Credit Agreement and the other Documents as a Lender to the extent
of its aggregate Commitment as fully as if it had been an original party to the
Credit Agreement.
3.4 NOTICES. The parties hereto hereby confirm and agree that, from and
after the date hereof, any demand, notice or communication to be given to BNP
Paribas, as a Lender, in accordance with the provisions of the Credit Agreement
shall be made or given to BNP Paribas at the following address:
00 Xxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
3.5 THE AGENT. Without in any way limiting the other provisions hereof, BNP
Paribas irrevocably appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under the Credit Agreement and
the other Documents as are delegated to the Agent by the terms thereof, together
with such powers as are reasonably incidental thereto, all in accordance with
the provisions of the Credit Agreement.
3.6 BNP CREDIT DECISION. BNP Paribas acknowledges to the Agent that BNP
Paribas has itself been, and will continue to be, solely responsible for making
its own independent appraisal of and investigations into the financial
condition, creditworthiness, condition, affairs, status and nature of the
Borrower and its Subsidiaries, all of the matters and transactions contemplated
herein and in the Credit Agreement and other Documents and all other matters
incidental to the Credit Agreement and the other Documents. BNP Paribas confirms
with the Agent that it does not rely, and it will not hereafter rely, on the
Agent:
(a) to check or inquire on its behalf into the adequacy, accuracy
or completeness of any information provided by the Borrower,
its Subsidiaries or any other person under or in connection
with the Credit Agreement and other Documents or the
transactions therein contemplated (whether or not such
information has been or is hereafter distributed to BNP
Paribas by the Agent); or
(b) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or
nature of the Borrower and its Subsidiaries.
BNP Paribas further acknowledges to the Agent that a copy of the Credit
Agreement (including a copy of the Schedules annexed thereto) has been made
available to it for review and further acknowledges and agrees that it has
received copies of such other Documents and such other information that it has
requested for the purposes of its investigation and analysis of all matters
related to this Agreement, the Credit Agreement, the other Documents and the
transactions
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contemplated hereby and thereby. BNP Paribas acknowledges to the Agent that it
is satisfied with the form and substance of the Credit Agreement and the other
Documents.
4. INCREASE IN LOAN LIMIT; ADJUSTMENT OF LENDER COMMITMENTS AND
OUTSTANDING PRINCIPAL
4.1 Effective as of the date of this Agreement, the Loan Limit shall be and
is hereby increased from Cdn. $400,000,000 to Cdn. $410,000,000.
4.2 Effective as of the date of this Agreement, the revised Commitments of
each Lender shall be as set forth in Schedule A attached hereto. To evidence and
give effect to the foregoing, Schedule A (Lenders and Commitments) to the Credit
Agreement is hereby deleted in its entirety and the new Schedule A attached
hereto is substituted therefor. The Lenders hereby agree that on the effective
date of this Agreement and after giving effect to such change in Commitments,
each Lender is owed its amended Rateable Portion of all Outstanding Principal.
5. REPRESENTATIONS AND WARRANTIES
5.1 The Borrower hereby represents and warrants as follows to each Lender
and the Agent and acknowledges and confirms that each Lender and the Agent is
relying upon such representations and warranties:
(a) Capacity, Power and Authority
(i) The Borrower is duly incorporated and is validly
subsisting under the laws of its jurisdiction of
incorporation or creation and has all the requisite
corporate capacity, power and authority to carry on
its business as presently conducted and to own its
property; and
(ii) The Borrower has the requisite corporate capacity,
power and authority to execute and deliver this
Agreement.
(b) Authorization; Execution; Enforceability
The Borrower has taken or caused to be taken all necessary
action to authorize, and has duly executed and delivered this
Agreement. This Agreement is a legal, valid and binding
obligation of the Borrower, enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
reorganization, winding up, insolvency, moratorium or other
laws of general application affecting the enforcement of
creditors rights generally and to the equitable and statutory
powers of the courts having jurisdiction with respect thereto.
5.2 The representations and warranties set out in this Agreement shall
survive the execution and delivery of this Agreement and the making of each
Drawdown, notwithstanding any investigations or examinations which may be made
by the Agent, the Lenders or Lenders' counsel. Such representations and
warranties shall survive until the Credit Agreement has been terminated.
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6. MATURITY DATE
The parties hereto confirm that the Maturity Date shall continue to be
July 31, 2007.
7. CONFIRMATION OF CREDIT AGREEMENT AND OTHER DOCUMENTS
The Credit Agreement and the other Documents and all covenants, terms
and provisions thereof, except as expressly amended and supplemented by this
Agreement, shall be and continue to be in full force and effect. The Credit
Agreement as amended and supplemented by this Agreement is hereby ratified and
confirmed and shall from and after the date hereof continue in full force and
effect as herein amended and supplemented.
8. FURTHER ASSURANCES
The parties hereto shall from time to time do all such further acts and
things and execute and deliver all such documents as are required in order to
effect the full intent of and fully perform and carry out the terms of this
Agreement.
9. COUNTERPARTS
This Agreement may be executed in any number of counterparts, and by
facsimile, each of which shall be deemed to be an original and all of which
taken together shall be deemed to constitute one and the same instrument, and it
shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart.
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
BORROWER: AGENT:
NEXEN INC. THE TORONTO-DOMINION BANK,
as Agent
By: /s/ Una Power By: /s/ Xxxxx X. Xxxxxx
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Name: Una Power Name: Xxxxx X. Xxxxxx
Title: Treasurer Title: Vice President, Loan
Syndications - Agency
By: /s/ Xxxx Xxxxxxxxxxx By:
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Name: Xxxx Xxxxxxxxxxx Name:
Title: Vice President, General Title:
Counsel--Corporate and
Assistant Secretary
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LENDERS:
THE XXXXXXX-XXXXXXXX XXXX XXXXX XXXX XX XXXXXX
By: /s/ Xxxx Xxxxx By: /s/ X.X. Xxxxxxxx
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Name: Xxxx Xxxxx Name: X.X. Xxxxxxxx
Title: Managing Director Title: Senior Manager
By: /s/ Xxxxx Xxxxxx By:
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Name: Xxxxx Xxxxxx Name:
Title: Associate -- Title:
Corporate Credit
THE BANK OF NOVA SCOTIA CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxx X. Xxxxxxxxx By: /s/ Xxxxx X. Perks
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Name: Xxx X. Xxxxxxxxx Name: Xxxxx X. Perks
Title: Director Title: Executive Director
By: By: /s/ Xxxxx X. Xxxxx
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Name: Name: Xxxxx X. Xxxxx
Title: Title: Managing Director
BANK OF AMERICA, N.A. BNP PARIBAS (CANADA)
By: /s/ Xxxxxx Xxx By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxxx Xxx Name: Xxxx-Xxxxxxxx Xxxxx
Title: Vice President Title: Vice President
Energy & Project Finance
By: By: /s/ Xxxxxxx Xxxxxxx
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Name: Name: Xxxxxxx Xxxxxxx
Title: Title: Vice President
Energy & Project Finance
SCHEDULE A
LENDERS AND COMMITMENTS
The Toronto-Dominion Bank Commitment: $90,000,000
Royal Bank of Canada Commitment: $85,000,000
The Bank of Nova Scotia Commitment: $75,000,000
Canadian Imperial Bank of Commerce Commitment: $60,000,000
Bank of America, N.A. Commitment: $50,000,000
BNP Paribas (Canada) Commitment: $50,000,000
