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EXHIBIT 10.2.2
SECOND AMENDMENT TO CANADIAN CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CANADIAN CREDIT AGREEMENT (herein called this
"Amendment") made as of June 27, 2001 by and among Northstar Energy Corporation,
an Alberta corporation ("Canadian Borrower"), Bank of America Canada,
individually and as administrative agent ("Canadian Agent"), and the Canadian
Lenders party to the Original Agreement defined below ("Canadian Lenders").
WITNESSETH:
WHEREAS, Canadian Borrowers, Canadian Agent and Canadian Lenders
entered into that certain Canadian Credit Agreement dated as of August 29, 2000
(as amended, supplemented, or restated to the date hereof, the "Original
Agreement"), for the purpose and consideration therein expressed, whereby
Canadian Lenders became obligated to make loans to Canadian Borrowers as therein
provided;
WHEREAS, on January 1, 2001 Northstar Energy, Devon Energy Canada
Holding Corporation (the successor by amalgamation to Devon Energy Canada) and
certain other Alberta corporations, all of which were Subsidiaries of US
Borrower, amalgamated under the name Northstar Energy Corporation (defined above
as the "Canadian Borrower") which is now the sole Canadian Borrower;
WHEREAS, Canadian Borrower, Canadian Agent and Canadian Lenders desire
to amend the Original Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Original Agreement, in
consideration of the loans which may hereafter be made by Canadian Lenders to
Canadian Borrower, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto do hereby
agree as follows:
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ARTICLE I.
Definitions and References
Section 1.1. Terms Defined in the Original Agreement. Unless the
context otherwise requires or unless otherwise expressly defined herein, the
terms defined in the Original Agreement shall have the same meanings whenever
used in this Amendment.
Section 1.2. Other Defined Terms. Unless the context otherwise
requires, the following terms when used in this Amendment shall have the
meanings assigned to them in this Section 1.2.
"Amendment" means this Second Amendment to Canadian Credit
Agreement.
"Canadian Agreement" means the Original Agreement as amended
hereby.
ARTICLE II.
Amendments to Original Agreement
Section 2.1. Defined Terms. The following additional defined terms are
hereby added to Annex I of the Original Agreement in appropriate alphabetical
order to read as follows:
"Devon Stock Repurchases" the purchase, redemption, or other
acquisition for value by US Borrower of shares of its Common
Stock, par value $0.10.
"Repurchased Devon Stock" means the shares of US Borrower's Common
Stock, par value $0.10, repurchased by US Borrower pursuant to
Devon Stock Repurchases.
Section 2.2. Use of Proceeds. The next to last sentence of Section 1.4
of the Original Agreement is hereby deleted and the following new sentence is
hereby substituted therefor:
"In no event shall the funds from any Canadian Loan or any Letter of
Credit be used directly or indirectly by any Person for personal,
family, household or agricultural purposes or for the purpose, whether
immediate, incidental or ultimate, of purchasing, acquiring or carrying
any "margin stock" (as such term is defined in Regulation U promulgated
by the Board of Governors of the Federal Reserve System) or to extend
credit to others directly or indirectly for the purpose of purchasing
or carrying any such margin stock; provided that Canadian Borrower may
extend credit to US Borrower, directly or indirectly, to be used to
make Devon Stock Repurchases in compliance with the US Agreement."
Section 2.3. Limitation on Restricted Payments. Section 7.5 of the
Original Agreement is hereby amended in its entirety to read as follows:
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"Section 7.5. Limitation on Restricted Payments. The aggregate
amount of Restricted Payments made by the Restricted Persons during any
Fiscal Year shall not exceed twenty percent (20%) of the book value of
the Consolidated Assets of US Borrower as of the end of the immediately
preceding Fiscal Year, as adjusted to take into account any increase
associated with an acquisition or merger."
Section 2.4. Disclosure Schedule. Paragraph 6 of the Disclosure
Schedule to the Original Agreement is hereby deleted and replaced by the list
set forth in Schedule 1, on which the following two new Subsidiaries have been
added: Tall Grass Gas Services, L.L.C. and Devon Energy Charitable Foundation.
ARTICLE III.
Conditions of Effectiveness
Section 3.1. Effective Date. This Amendment shall become effective as
of the date first above written when and only when:
(a) Canadian Agent shall have received all of the following, at
Canadian Agent's office, duly executed and delivered and in form and substance
satisfactory to Canadian Agent, all of the following:
(i) this Amendment executed by Canadian Borrower, Canadian
Agent and Canadian Required Lenders;
(ii) a certificate of the Chairman of the Board, President, or
Vice President - Finance of Canadian Borrower dated the date of this
Amendment certifying: (i) that all of the representations and
warranties set forth in Article IV hereof are true and correct at and
as of such date, and (ii) that no Default exists at and as of such
date.
(b) Canadian Borrower shall have paid, in connection with such Canadian
Loan Documents, all fees and reimbursements to be paid to Canadian Agent
pursuant to any Canadian Loan Documents, or otherwise due Canadian Agent and
including fees and disbursements of Canadian Agent's attorneys.
ARTICLE IV.
Representations and Warranties
Section 4.1. Representations and Warranties of Canadian Borrower. In
order to induce each Canadian Lender to enter into this Amendment, Canadian
Borrower represents and warrants to each Canadian Lender that:
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(a) The representations and warranties contained in Article V of the
Original Agreement are true and correct at and as of the time of the
effectiveness hereof, except to the extent that the facts on which such
representations and warranties are based have been changed by the extension of
credit under the Canadian Agreement.
(b) Canadian Borrower is duly authorized to execute and deliver this
Amendment and is and will continue to be duly authorized to borrow monies and to
perform its obligations under the Canadian Agreement. Canadian Borrower has duly
taken all corporate action necessary to authorize the execution and delivery of
this Amendment and to authorize the performance of the obligations of Canadian
Borrower hereunder.
(c) The execution and delivery by Canadian Borrower of this Amendment,
the performance by Canadian Borrower of its obligations hereunder and the
consummation of the transactions contemplated hereby do not and will not (i)
conflict with any provision of (A) any Law, (B) the organizational documents of
Canadian Borrower, or (C) any agreement, judgment, license, order or permit
applicable to or binding upon Canadian Borrower unless such conflict would not
reasonably be expected to have a Material Adverse Effect, or (ii) result in or
require the creation of any Lien upon any assets or properties of Canadian
Borrower which would reasonably be expected to have a Material Adverse Effect,
except as expressly contemplated or permitted in the Loan Documents. Except as
expressly contemplated in the Loan Documents no consent, approval, authorization
or order of, and no notice to or filing with, any Tribunal or third party is
required in connection with the execution, delivery or performance by Canadian
Borrower of this Amendment or to consummate any transactions contemplated by
this Amendment, unless failure to obtain such consent would not reasonably be
expected to have a Material Adverse Effect.
(d) When duly executed and delivered, each of this Amendment and the
Canadian Agreement will be a legal and binding obligation of Canadian Borrower,
enforceable in accordance with its terms, except as limited by bankruptcy,
insolvency or similar laws of general application relating to the enforcement of
creditors' rights and by equitable principles of general application.
(e) The audited annual Consolidated financial statements of US Borrower
dated as of December 31, 2000 and the unaudited quarterly Consolidated financial
statements of US Borrower dated as of March 31, 2001 fairly present the
Consolidated financial position at such dates and the Consolidated statement of
operations and the changes in Consolidated financial position for the periods
ending on such dates for US Borrower. Copies of such financial statements have
heretofore been delivered to each Canadian Lender. Since such dates no material
adverse change has occurred in the financial condition or businesses or in the
Consolidated financial condition or businesses of US Borrower.
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ARTICLE V.
Miscellaneous
Section 5.1. Ratification of Agreements. The Original Agreement as
hereby amended is hereby ratified and confirmed in all respects. The Canadian
Loan Documents, as they may be amended or affected by this Amendment, are hereby
ratified and confirmed in all respects. Any reference to the Canadian Agreement
in any Loan Document shall be deemed to be a reference to the Original Agreement
as hereby amended. The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of Canadian Lenders under the Canadian Agreement, or any
other Canadian Loan Document nor constitute a waiver of any provision of the
Canadian Agreement, or any other Canadian Loan Document.
Section 5.2. Survival of Agreements. All representations, warranties,
covenants and agreements of Canadian Borrower herein shall survive the execution
and delivery of this Amendment and the performance hereof, including without
limitation the making or granting of the Loans, and shall further survive until
all of the Obligations are paid in full. All statements and agreements contained
in any certificate or instrument delivered by Canadian Borrower or any
Restricted Person hereunder or under the Canadian Agreement to any Canadian
Lender shall be deemed to constitute representations and warranties by, and/or
agreements and covenants of, Canadian Borrower under this Amendment and under
the Canadian Agreement.
Section 5.3. Canadian Loan Documents. This Amendment is a Canadian Loan
Document, and all provisions in the Canadian Agreement pertaining to Canadian
Loan Documents apply hereto and thereto.
Section 5.4. Governing Law. This Amendment shall be governed by and
construed in accordance the laws of the Province of Alberta and any applicable
laws of Canada in all respects, including construction, validity and
performance.
Section 5.5. Counterparts; Fax. This Amendment may be separately
executed in counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to constitute one
and the same Amendment. This Amendment may be validly executed by facsimile or
other electronic transmission.
THIS AMENDMENT AND THE OTHER CANADIAN LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
NORTHSTAR ENERGY CORPORATION
Canadian Borrower
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Vice President - Finance
ABN AMRO BANK CANADA
Lender
By: /s/
-------------------------------
Name:
Title:
By: /s/
-------------------------------
Name:
Title:
BANK OF AMERICA CANADA
Administrative Agent, Canadian LC
Issuer and Lender
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
Corporate Investment Banking
BANK OF TOKYO - MITSUBISHI (CANADA)
Lender
By: /s/
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Name:
Title:
BANK ONE, NA CANADA BRANCH
Lender
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: First Vice President
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BAYERISCHE LANDESBANK GIROZENTRALE,
CAYMAN ISLANDS BRANCH
Lender
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx Title:
Senior Vice President
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
CANADIAN IMPERIAL BANK OF COMMERCE
Lender
By: /s/ Xxxxxx Xxxxxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Director
By: /s/ Xxxxx X. Perks
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Name: Xxxxx X. Perks
Title: Executive Director
CITIBANK CANADA
Lender
By: /s/
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Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
Lender
By: /s/ Philippe Soustra
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Name: Philippe Soustra
Title: Executive Vice President
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DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCH Lender
By: /s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxxxx, Xx.
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Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President
FIRST UNION NATIONAL BANK
Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President
X.X. XXXXXX CANADA
Lender
By:/s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: VP & Controller
ROYAL BANK OF CANADA
Lender
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
SUNTRUST BANK, ATLANTA
Lender
By: /s/
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Name:
Title:
By: /s/
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Name:
Title:
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THE BANK OF NEW YORK
Lender
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK
Lender
By: /s/
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Name:
Title:
THE FUJI BANK, LIMITED
Lender
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President &
Manager
UMB BANK
Lender
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Community Bank President
WESTDEUTSCHE LANDESBANK GIROZENTRALE
Lender
By: /s/
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Name:
Title:
By: /s/
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Name:
Title:
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SCHEDULE 1
AMENDMENT TO DISCLOSURE SCHEDULE
6. Section 5.11 US Borrower's Subsidiaries: The following entities are,
directly or indirectly, wholly owned by US Borrower (unless otherwise noted):
Devon Energy Corporation (Oklahoma), an Oklahoma corporation
Devon Energy Management Company, L.L.C.
Devon Financing Trust II
DBC, Inc., an Oklahoma corporation
Devon Holding Corporation, f/k/a/ Devon Acquisition
Corporation, a Delaware corporation
Devon Production Corporation, a Nevada corporation
Catclaw Pipeline, Inc., an Oklahoma corporation
Northstar Energy Corporation (100% of common shares)
Devon Energy Canada, Ltd.
Devon Energy Insurance Company Limited
Richland Development Corporation
Canoa Ranch Corporation
Richland Transition Company
Strategic Trust Company
Vermejo Park Corporation
Vermejo Minerals Corporation
Devon Financing Trust (100% of common securities)
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Thunder Creek Gas Services, L.L.C. (75%)
Sage Creek Processors, L.L.C.
American Sulphur Export Corporation (50%) which owns 100% of
Amsulex, Inc.
Foothills Partnership (1%)
Xxxxxxxx Nuclear Inc.
Devon Energy Partners A Limited Partnership
Mountain Energy Inc.
Northstar Energy Partnership
Devon Energy Production Company, L.P.
Bonito Pipe Line Company
Cachuma Gas Processing Company
Canyon Reef Carriers, Inc.
Capitan Oil Pipeline Company
Pennzoil Energy Marketing Company
Pennzoil Gas Marketing Company
Devon Energy International Company
Pennzoil Asiatic Inc.
Devon Energy Egypt, Inc.
Pennzoil Qatar Inc.
Azerbaijan International Operating Corporation (5%)
Caspian International Petroleum Company (30%)
Devon Energy Beni Suef Inc.
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Devon Energy Caspian Corporation
Pennzoil Caspian Development Corporation
Devon Energy Exploration Brazil, Inc.
Devon Energy Brasil, Ltda.
Devon Energy Qatar Production, Inc.
Devon Energy Red Sea, Inc.
Fanar Petroleum Company (50%)
Devon Energy Sinai, Inc.
Devon Energy Suez, Inc.
Pennzoil Venezuela Corporation SA
Nueces Intrastate Pipe Line Company
Devon Energy Intrastate Pipeline Company
Devon Energy Offshore Pipeline Company
Devon Energy Petroleum Pipeline Company
Pennzoil Petroleums Ltd.
Pennzoil Resources Canada Ltd.
PennzEnergy (U.K.) Company
Pepco Partners, L.P. (20%)
Sisquoc Gas Pipeline Company
Tiburon Transport Company
892306 Alberta Ltd..
Canadian Gas Gathering Systems II, Inc.
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167496 Canada Ltd. (64%)
Devon-Xxxxxx Company
Xxxxxxxx Gas Gathering Inc.
Xxxxxxxx Operating Company Ltd.
Xxxxxxxx Petroleums, Ltd.
Northstar Energy Inc.
Richland Properties Company, L.L.C.
BN Coal, L.L.C.
BN Non-Coal, L.L.C.
B&N Co. A Limited Partnership
Xxxxxxxxx & Xxxxxxx Co. A Limited Partnership
Devon SFS Operating, Inc. (formerly Devon Merger Co./Santa Xx
Xxxxxx Corporation)
Santa Fe Platform Management, Inc.
Security Purchasing, Inc.
Xxxxxx Fluid Technology, Inc.
Xxxxxx Gas Marketing, Inc.
SOCO Technologies, Inc.
SOCO Gas Systems, Inc.
SOCO Louisiana Leasing, Inc.
Adobe Offshore Pipeline Company
Santa Fe Pacific Fuels Company
Mexican Flats Service Company, Inc.
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Wyoming Gathering and Production Company, Inc.
SOCO International, Inc.
SOCO International Holdings, Inc.
Santa Fe Energy Resources (Delaware), Ltd.
SFERI, Inc.
Santa Fe Energy Resources of Ghana, Ltd.
Santa Fe Energy Resources International, Ltd.
Santa Fe Energy Resources (New Ventures II), Ltd.
Santa Fe Energy Resources (New Ventures III), Ltd.
Santa Fe Energy Resources (New Ventures IV), Ltd.
Santa Fe Energy Resources (Cote D'Ivoire) Ltd.
Santa Fe Energy Resources Port Bouet Ltd.
Santa Fe Energy Resources (Bermuda) Limited.
Santa Fe Energy Resources Kepala Burung Limited
Santa Fe Energy Resources Bangko Ltd.
Santa Fe Energy Resources Pagatan Ltd.
Santa Fe Energy Resources of China, Ltd.
Santa Fe Energy Resources of Malaysia, Ltd.
Santa Fe Energy Resources (Thai Holding), Ltd.
Santa Fe Energy Resources (Thailand), Ltd.
Santa Fe Energy Resources Congo, Ltd.
Santa Fe Energy Resources Gabon (Agali), Ltd.
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Santa Fe Energy Resources (Brazil Holdings I), Ltd.
Santa Fe Energy Resources (Brazil Holdings II), Ltd.
SFR Petroleo Do Brazil Ltda.
SFS (International), Ltd.
SFS (Holdings), Ltd.
Santa Fe Energy Resources (Jabung), Ltd.
Santa Fe Energy Resources Limited
Santa Fe Energy Resources of Gabon, Ltd.
Petrolera Santa Fe S.A.
Braemar Shipping Company Limited
Santa Fe Energy Resources South East Asia Limited
746481 Alberta Ltd.
Trend Exploration (PNG) Party Ltd.
Santa Fe Energy Resources of Gabon (Mondah Bay), Ltd.
Santa Fe Energy Resources of Canada, Inc.
Santa Fe Energy Resources of Myanmar, Ltd.
Petrolera Santa Fe (Columbia), Ltd.
Santa Fe Energy Resources of Peru, Ltd.
Santa Fe Energy Resources of Bolivia, Inc.
Santa Fe Energy Company of Argentina
Trend Argentina S.A.
Santa Fe Energy Resources of Morocco, Ltd.
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Gulf Coast American Corp.
SFS Malta One, Inc.
SFS Malta Two, Inc.
SFS (France) SARL
Ceara Star (Malta) Ltd.
SFS Malta Holding Company Ltd.
SFS Malta International Trading Company Ltd.
Tall Grass Gas Services, L.L.C.
Devon Energy Charitable Foundation
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