EXHIBIT 4.44
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EXECUTION COPY
THIRD AMENDING AGREEMENT
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THIS AGREEMENT is made 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 PAGES HEREOF
UNDER THE HEADING "LENDERS:" (hereinafter sometimes 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 Restated Credit Agreement;
AND WHEREAS the parties hereto have agreed to amend and supplement
certain provisions of the Restated Credit Agreement as hereinafter set forth;
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. 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.
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"RESTATED CREDIT AGREEMENT" means the restated credit agreement made as of April
14, 1997 and amended and restated as of October 16, 2000 between the Borrower,
as borrower, the Lenders and the Agent, as amended to the date hereof.
1.2. Capitalized terms used herein without express definition shall have the
same meanings herein as are ascribed thereto in the Restated 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 the federal laws of Canada applicable
therein.
2. ADDITION OF BNP PARIBAS AS LENDER
2.1. 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 of the Restated Credit Agreement and the other
Documents and all references therein to "Lenders" or "a Lender" shall be deemed
to include BNP Paribas.
2.2. BNP PARIBAS COMMITMENT. The parties hereto hereby confirm and agree
that, from and after the date hereof, the A Facility Commitment of BNP Paribas
shall be Cdn. $44,000,000 and the B Facility Commitment of BNP Paribas shall be
Cdn. $66,000,000.
2.3. NOVATION OF BNP PARIBAS. BNP Paribas hereby agrees that it will be
bound by the Restated Credit Agreement and the other Documents as a Lender to
the extent of its aggregate Commitments as fully as if it had been an original
party to the Restated Credit Agreement.
2.4. 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 Restated Credit
Agreement shall be made or given to BNP Paribas at the address set out in
Schedule A to the Restated Credit Agreement, as amended hereby.
2.5. 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 Restated 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 Restated Credit Agreement.
2.6. 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 Restated Credit Agreement and other Documents and all other
matters
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incidental to the Restated 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 Restated 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 acknowledges to the Agent that a copy of the Restated 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 Restated Credit Agreement, the other Documents
and the transactions contemplated hereby and thereby. BNP Paribas acknowledges
to the Agent that it is satisfied with the form and substance of the Restated
Credit Agreement and the other Documents.
3. EXTENSION DATE; REVISED COMMITMENTS
3.1. The Extension Date is hereby extended to July 27, 2004 pursuant to
Section 2.17 of the Restated Credit Agreement with respect to each Lender.
3.2. Schedule A (Lenders and Commitments) to the Restated Credit Agreement
is hereby deleted in its entirety and replaced with the attached Schedule A to
reflect the changes in the Commitments of certain Lenders contemplated by this
Agreement. Further, the definition of "A Facility" in Section 1.1 of the
Restated Credit Agreement is hereby amended to delete "Cdn. $400,400,000" and to
substitute therefore "Cdn. $468,400,000" and the definition therein of "B
Facility" is hereby amended to delete "Cdn. $600,600,000" and to substitute
therefore "Cdn. $702,600,000".
4. REPRESENTATIONS AND WARRANTIES
4.1. 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) It 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
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(ii) It has the requisite corporate capacity, power and
authority to execute and deliver this Agreement.
(b) AUTHORIZATION; ENFORCEABILITY
It has taken or caused to be taken all necessary action to
authorize, and has duly executed and delivered, this
Agreement, and this Agreement is a legal, valid and binding
obligation of it, 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.
4.2. 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 Restated Credit Agreement has been
terminated.
5. CONFIRMATION OF CREDIT AGREEMENT AND OTHER DOCUMENTS
The Restated 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 and the Restated Credit Agreement as amended and supplemented by this
Agreement and each of the other Documents is hereby ratified and confirmed and
shall from and after the date hereof continue in full force and effect, in the
case of the Restated Credit Agreement, as herein amended and supplemented, with
such amendments and supplements being effective as of the date hereof.
6. 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.
7. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which taken together shall be
deemed to constitute one and the same instrument, and it shall not be necessary
in making proof of this Agreement to produce or account for more than one such
counterpart. This Agreement may be executed and delivered by facsimile, which
when so executed and delivered shall constitute a binding agreement of the
parties hereto.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first above written.
NEXEN INC.
By: /s/ Una Power
-----------------------------------
Name: Una Power
Title: Treasurer
By: /s/ Xxxx Xxxxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Vice-President General
Counsel-Corporate and
Assistant Secretary
LENDERS:
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THE TORONTO-DOMINION BANK
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Associate - Corporate
Credit
EXPORT DEVELOPMENT CANADA
By: /s/ Xxxxxx Xxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxx Xxxxx
Title: Senior Financial Services
Manager
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Senior Financial Services
Manager
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxxxx X. Perks
-----------------------------------
Name: Xxxxx X. Perks
Title: Executive Director
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
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DEUTSCHE BANK AG, CANADA BRANCH
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director and
Principal Officer
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
ROYAL BANK OF CANADA
By: /s/ X.X. Xxxxxxxx
-----------------------------------
Name: X.X. Xxxxxxxx
Title: Senior Manager
By: /s/
-----------------------------------
Name:
Title:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx Xxx
-----------------------------------
Name: Xxxxxx Xxx
Title: Vice President
By:
-----------------------------------
Name:
Title:
CITIBANK, N.A., CANADIAN BRANCH
By: /s/ C.D. Impey
-----------------------------------
Name: C.D. Impey
Title: Director
By:
-----------------------------------
Name:
Title:
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BNP PARIBAS (CANADA)
By: /s/ Xxxx-Xxxxxxxx Xxxxx
-----------------------------------
Name: Xxxx-Xxxxxxxx Xxxxx
Title: Vice President
Energy & Project Finance
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Energy & Project Finance
HSBC BANK CANADA
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Head of Corporate &
Institutional Banking
Western Region
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Assistant Vice President
Corporate & Institutional
Banking
BANK OF TOKYO-MITSUBISHI (CANADA)
By: /s/ X. Xxxxxx
-----------------------------------
Name: X. Xxxxxx
Title: Executive Vice President
& General Manager
By:
-----------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxxx X. Xxx
-----------------------------------
Name: Xxxxxxx X. Xxx
Title: Managing Director
By:
-----------------------------------
Name:
Title:
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AGENT:
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THE TORONTO-DOMINION BANK, in
its capacity as Agent
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President, Loan
Syndications-Agency
SCHEDULE A
LENDERS AND COMMITMENTS
LENDER AND ADDRESS COMMITMENTS
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THE TORONTO-DOMINION BANK A Facility Commitment:
800 Home Oil Tower Cdn. $64,000,000
000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0 B Facility Commitment:
Cdn. $96,000,000
Attention: Xxxx Xxxxxxx
Telecopy No.: (000) 000-0000
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EXPORT DEVELOPMENT CANADA A Facility Commitment:
000 X'Xxxxxx Xxxxxx Xxxxxx, Xxxxxxx Cdn. $60,000,000
X0X 0X0
Attention: Xxxx Xxxxxx
Telecopy No.: (000) 000-0000 B Facility Commitment:
Cdn. $90,000,000
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CANADIAN IMPERIAL BANK OF COMMERCE A Facility Commitment:
00xx Xxxxx, Xxxxxxx Xxxx Xxx. $50,400,000
000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx B Facility Commitment:
T2P 2P2 Cdn. $75,600,000
Attention: Xxxxx Xxxxx
Telecopy No.: (000) 000-0000
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DEUTSCHE BANK AG, CANADA BRANCH A Facility Commitment:
000 Xxx Xxxxxx, 00xx Xxxxx Xxx. $50,000,000
Xxxxxxx, Xxxxxxx
X0X 0X0
B Facility Commitment:
Cdn. $75,000,000
Attention: Xxx X'Xxxx/Xxx Xxxxxxxx
Telecopy No.: (000) 000-0000
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A-2
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ROYAL BANK OF CANADA A Facility Commitment:
Corporate Banking, 23rd Floor Cdn. $46,000,000
000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0 B Facility Commitment:
Cdn. $69,000,000
Attention: Xxxxx Xxxxxxxx
Telecopy No.: (000) 000-0000
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BANK OF AMERICA, N.A. A Facility Commitment:
c/o Bank of America Securities Cdn. $44,000,000
NY1-301-48-05
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000 B Facility Commitment:
Cdn. $66,000,000
Attention: Xxxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
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CITIBANK, N.A., CANADIAN BRANCH A Facility Commitment:
000 -0xx Xxxxxx X.X., Xxxxx 0000 Cdn. $44,000,000
Xxxxxxx, Xxxxxxx
X0X 0X0
B Facility Commitment:
Cdn. $66,000,000
Attention: Xxxxx Xxxxxxxx
Telecopy No.: (000) 000-0000
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BNP PARIBAS (CANADA) A Facility Commitment:
00 Xxxx Xxxxxx Xxxx, Xxxxx 0000 Cdn. $44,000,000
Xxxxxxx, Xxxxxxx X0X 0X0
B Facility Commitment:
Attention: Xxxx-Xxxxxxxx Xxxxx Cdn. $66,000,000
Telecopy No.: (000) 000-0000
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HSBC BANK CANADA A Facility Commitment:
2210, 000-0xx Xxxxxx X.X. Cdn. $40,000,000
Xxxxxxx, Xxxxxxx
X0X 0X0
B Facility Commitment:
Cdn. $60,000,000
Attention: Xxxxx Xxxxxxxxxx/Xxxxxxx
Xxxxxxxx
Telecopy No.: (000) 000-0000
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A-3
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BANK OF TOKYO MITSUBISHI (CANADA) A Facility Commitment:
Xxxxx 000 Xxxxxxxxx Xxx. $16,000,000
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0 B Facility Commitment:
Cdn. $24,000,000
Attention: Xxxxx Xxxxxxx
Telecopy No.: (000) 000-0000
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THE BANK OF NOVA SCOTIA A Facility Commitment:
Scotia Capital Bank Finance Cdn. $10,000,000
0000, 000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0 B Facility Commitment:
Cdn. $15,000,000
Attention: Xxx Xxxxxxxxx
Telecopy No.: (000) 000-0000
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