EXHIBIT 10.10
FIFTH AMENDMENT TO CANADIAN CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CANADIAN CREDIT AGREEMENT (herein called this
"Amendment") made as of September 21, 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 Borrower, 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, upon becoming an "authorized foreign bank", it is intended
that Bank of America, N.A. acting through a Canadian branch will replace Bank of
America Canada as Canadian Agent, Canadian LC Issuer, Canadian Swing Lender and
as a Canadian Lender;
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:
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 Fifth Amendment to Canadian Credit
Agreement.
"Amendment Fee" means a fee, payable to each Canadian Lender
which executes and delivers this Amendment before noon on September 21,
2001 (unless extended by Canadian Borrower), in the amount of five
basis points (0.05%) of such Canadian Lender's Percentage Share of the
Canadian Maximum Credit Amount.
"Long Term Financing" means a senior unsecured bank facility
in an amount not to exceed US $6,000,000,000 arranged by UBS Warburg
LLC and Banc of America Securities LLC to finance the acquisition by US
Borrower of Xxxxxxxx Exploration Ltd. and/or Xxxxxxxx Energy &
Development Corp. through wholly-owned Subsidiaries of US Borrower.
"Canadian Agreement" means the Original Agreement as amended
hereby.
ARTICLE II.
Amendments to Original Agreement
Section 2.1. Defined Terms.
(a) The definitions of "Canadian Agent", "Canadian LC Issuer",
"Canadian Lenders", "Canadian Prime Rate", "Canadian Resident Lender", "Canadian
Swing Lender", "Canadian Swing Rate" and "Canadian US Dollar Base Rate" in Annex
I to the Original Agreement are hereby amended in their entirety to read as
follows:
"Canadian Agent" means Bank of America Canada and its
successors and assigns as administrative agent under the Canadian
Agreement.
"Canadian LC Issuer" means Bank of America Canada and its
successors and assigns in its capacity as the issuer of Letters of
Credit under the Canadian Agreement. Canadian Agent may, with the
consent of Canadian Borrower and the Lender in question, appoint any
Canadian Resident Lender hereunder as a Canadian LC Issuer in place of
or in addition to Canadian Agent.
"Canadian Lenders" means each signatory to the Canadian
Agreement (other than any Borrower), including Bank of America Canada
and, upon the requirements of Section 2.5 of the Fifth Amendment to
Canadian Credit Agreement, dated as of September 21, 2001, among
Canadian Borrower, Canadian Agent and Canadian Lenders, being
completed, Bank of America, N.A. acting through a Canadian branch in
the capacity of a Canadian Lender and the Canadian Swing Lender
hereunder, rather than as Canadian Agent and Canadian LC Issuer, and
the successors of each such party as holder of a Canadian Note.
"Canadian Prime Rate" means on any day a fluctuating rate of
interest per annum equal to the higher of (i) the rate of interest per
annum most recently announced by
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Fifth Amendment to Canadian Credit Agreement
Canadian Agent as its reference rate for Canadian Dollar commercial
loans made to a Person in Canada; and (ii) Canadian Agent's Discount
Rate for Bankers' Acceptances having a maturity of thirty days plus the
Applicable Margin. No Canadian Prime Rate charged by any Person shall
ever exceed the Highest Lawful Rate.
"Canadian Resident Lender" means each Lender identified as
such on Annex II to the Canadian Agreement or any Assignment and
Acceptance executed by a new Lender, each being a Person that is (i)
not a non-resident of Canada for the purposes of the Income Tax Act
(Canada) or (ii) a Person that is an "authorized foreign bank" as
defined in section 2 of the Bank Act (Canada) and in subsection 248(1)
of the Income Tax Act (Canada) which will receive all amounts paid or
credited to it under the Canadian Obligations in respect of its
"Canadian banking business" for the purposes of paragraph 212(13.3)(a)
of the Income Tax Act (Canada).
"Canadian Swing Lender" means Bank of America Canada and its
successors and assigns, in their individual capacities, as Canadian
Swing Lender.
"Canadian Swing Rate" means on any day a fluctuating rate of
interest per annum established from time to time by Canadian Swing
Lender as its money market rate, which rate may not be the lowest rate
of interest charged by Canadian Swing Lender to its customers, plus the
Applicable Margin. The Canadian Swing Rate shall never exceed the
Highest Lawful Rate.
"Canadian US Dollar Base Rate" means on any day, the rate per
annum equal to the higher of (a) the Federal Funds Rate for such day
plus one-half of one percent (0.5%) and (b) the rate of interest per
annum most recently established by Canadian Agent as its reference rate
for US Dollar commercial loans made to a Person in Canada. Any change
in the Canadian US Dollar Base Rate due to a change in Canadian Agent's
reference rate shall be effective on the effective date of such change.
No Canadian US Dollar Base Rate charged by any Person shall ever exceed
the Highest Lawful Rate.
"Schedule II BA Reference Banks" means the Lenders listed in
Schedule II to the Bank Act (Canada) and the Lenders listed in Schedule
III to the Bank Act (Canada) that are not subject to the restrictions
and requirements referred to in subsection 524(2) of the Bank Act
(Canada) as are, at such time, designated by Canadian Agent, with the
prior consent of the Canadian Borrower (acting reasonably), as the
Schedule II BA Reference Banks.
(b) Clauses (o) and (x) of the definition of "Permitted Liens" in Annex
I to the Original Agreement are hereby amended in their entirety to read as
follows:
"(o) Liens in respect of Indebtedness permitted by
Sections 7.1(b), 7.1(f) and 7.1(j), and Liens in
respect of Indebtedness permitted by Section 7.1(c),
but only to the extent that such Liens encumber the
assets expressly permitted to secure such
Indebtedness by the terms of Section 7.1(c);"
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Fifth Amendment to Canadian Credit Agreement
"(x) in addition to Liens permitted by clauses (a) through
(w) above, Liens on property or assets if the
aggregate Indebtedness secured thereby does not
exceed two percent (2%) of Consolidated Assets."
Section 2.2. Indebtedne Section Subsection (c) of Section 7.1 of the
Original Agreement is hereby amended in its entirety to read as follows:
"(c) unsecured Liabilities owed among the Restricted Persons;
provided that Liabilities owed by any Restricted Subsidiary (other than
Canadian Borrower) to US Borrower may be secured by any and all assets
of such Restricted Subsidiary."
Section 2.3. Funded Debt to Total Capitalization. Section 7.6 of the
Original Agreement is hereby amended in its entirety to read as follows:
"Section 7.6. Funded Debt to Total Capitalization. The ratio
of US Borrower's Consolidated Total Funded Debt to US Borrower's Total
Capitalization will not exceed (i) seventy percent (70%) at the end of
any Fiscal Quarter ending on or before June 30, 2002, or (ii)
sixty-five percent (65%) at the end of any Fiscal Quarter thereafter."
Section 2.4. Assignments. Section 10.6(a)(ii) of the Original Agreement
is hereby amended in its entirety to read as follows:
"(ii) together with each such assignment of its rights and
obligations under this Agreement, such Lender shall assign the same
Percentage Share of its rights and obligations with respect to the
Tranche B Loans under the US Agreement to the same Eligible Transferee
or an Affiliate of such Eligible Transferee, unless such assignment is
being made to an Eligible Transferee which is an Affiliate of the
assignor;"
Section 2.5. Concerning Bank of America. Canadian Agent, Canadian
Borrower and Canadian Lenders hereby agree that Bank of America, N.A. acting
through a Canadian branch shall automatically become Canadian Agent, Canadian LC
Issuer, Canadian Swing Lender and a Canadian Lender under the Canadian Agreement
and that all references to Bank of America Canada in the Loan Documents shall be
deemed to refer to Bank of America, N.A. acting through a Canadian branch upon
(i) Bank of America, N.A. acting through a Canadian branch becoming an
"authorized foreign bank" under the Bank Act (Canada), and (ii) Bank of America,
N.A. acting through a Canadian branch providing to Canadian Borrower all of the
following:
(a) evidence that Bank of America, N.A. acting through a
Canadian branch has become an "authorized foreign bank" under the Bank
Act (Canada); and
(b) an assignment by Bank of America Canada to Bank of
America, N.A. acting through a Canadian branch of all its rights and
obligations under the Canadian Agreement (including, without
limitation, all of its Canadian Loans, Canadian Note and its Percentage
Share of the Canadian LC Obligations and the Canadian Maximum Credit
Amount) complying with the requirements of Section 10.6 of the Canadian
Agreement, as amended hereby except for the provisions of the last
sentence of Section 10.6(a) which shall not be applicable.
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Fifth Amendment to Canadian Credit Agreement
ARTICLE III.
Conditions of Effectiveness
Section 3.1. Effective Date. Except for the amendment in Section2.3
hereof, 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, to each Canadian Lender which
executed and delivered this Amendment before noon on September 21, 2001 (unless
extended by Canadian Borrower), such Canadian Lender's Amendment Fee and all
other fees and reimbursements to be paid to Canadian Agent and Canadian Lenders
pursuant to any Canadian Loan Documents, or otherwise due Canadian Agent or
Canadian Lenders and including fees and disbursements of Canadian Agent's
attorneys.
Section 3.2. Effective Date of Section 2.3. The amendment in Section
2.3 of this Amendment shall become effective as of the date when and only as of
the date when:
(a) The conditions set forth in Section 3.1 (a) and (b) above have been
satisfied; and
(b) The documentation governing the Long Term Financing shall have been
executed and delivered, the initial funding shall have been advanced thereunder,
and shares of Xxxxxxxx Exploration Ltd. shall have been acquired by US Borrower
or a Restricted Subsidiary pursuant to US Borrower's offer to purchase the
shares of Xxxxxxxx Exploration Ltd.
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Fifth Amendment to Canadian Credit Agreement
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:
(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 June 30, 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
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Fifth Amendment to Canadian Credit Agreement
statements have heretofore been delivered to each Canadian Lender. Since such
dates no material adverse change has occurred in the Consolidated financial
condition or businesses of US Borrower.
ARTICLE V.
Miscellaneous
Section 5.1. Long Term Financing. Pursuant to Section 9.7 of the
Canadian Agreement, Canadian Lenders agreed that Bank of America Canada and its
Affiliates may engage in any kind of banking, trust, financial advisory,
underwriting or other business with each of the Restricted Persons and their
respective Affiliates as though Bank of America Canada were not the Canadian
Agent or the Canadian LC Issuer hereunder and without notice to or consent of
Lenders. Canadian Lenders acknowledged that, pursuant to such activities, Bank
of America Canada or its Affiliates may receive information regarding any
Restricted Person or its Affiliates (including information that may be subject
to confidentiality obligations in favor of such Restricted Person or such
Affiliate) and that the Canadian Agent shall be under no obligation to provide
such information to them. Although not required by the terms of the Original
Agreement, Bank of America Canada hereby notifies Canadian Lenders that USB AG,
Stamford Branch, UBS Warburg LLC, Bank of America and Banc of America Securities
LLC have agreed to provide the Long Term Financing and may provide additional
services to the Restricted Persons in connection with the acquisitions financed
thereby.
Section 5.2. 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 5.3. 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 5.4. Canadian Loan Documents. This Amendment is a Canadian Loan
Document, and all provisions in the Canadian Agreement pertaining to Canadian
Loan Documents apply hereto.
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Fifth Amendment to Canadian Credit Agreement
Section 5.5. 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 5.6. 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 IS INTENTIONALLY LEFT BLANK.]
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Fifth Amendment to Canadian Credit Agreement
IN WITNESS WHEREOF, this Amendment is executed as of the date first
above written.
NORTHSTAR ENERGY CORPORATION
Canadian Borrower
By: /s/ Xxxx Xxxxxxxx
----------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President - Finance
BANK OF AMERICA CANADA
Administrative Agent, Canadian LC Issuer and
Lender
By: /s/ Xxxxxx Xxx
----------------------------------------------
Name: Xxxxxx Xxx
Title: Vice President
ABN AMRO BANK CANADA
Lender
By: /s/ Xxxx Xxxx
----------------------------------------------
Name: Xxxx Xxxx
Title: Group Vice President
By: /s/ Xxxxxx Xx
----------------------------------------------
Name: Xxxxxx Xx
Title: Vice President
BANCFIRST
Lender
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
BANK OF TOKYO - MITSUBISHI (CANADA)
Lender
By:
-----------------------------------------------
Name:
Title:
Fifth Amendment to Canadian Credit Agreement
XXXX XXX, XX, XXXXXX BRANCH
Lender
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: First Vice President
BAYERISCHE LANDESBANK
GIROZENTRALE, TORONTO BRANCH
Lender
By: /s/ Xxxxxx Xxxxxx
----------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Second Vice President
CANADIAN IMPERIAL BANK OF COMMERCE
Lender
By: /s/ Xxxxxx Xxxxxxxxxxxx
----------------------------------------------
Name: Xxxxxx Schellenerg
Title: Director
By: /s/ Xxxxx X.Perks
----------------------------------------------
Name: Xxxxx X. Perks
Title: Executive Director
CITIBANK CANADA
Lender
By: /s/ Xxxxx K. G. Xxxxxxxx
----------------------------------------------
Name: Xxxxx K. G. Xxxxxxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
Lender
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Senior Vice President
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CREDIT SUISSE FIRST BOSTON CANADA
Lender
By: /s/ X. X. XxXxxxxxx
----------------------------------------------
Name: X. X. XxXxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxx
----------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
Lender
By: /s/ Xxxx Xxxxxxxx
----------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
Lender
By: /s/ Xxxxx X. Xxxx
----------------------------------------------
Name: Xxxxx X. Xxxx
Title: Managing Director
ROYAL BANK OF CANADA
Lender
By: /s/ Xxxxx Xxxxxxx
----------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
SUNTRUST BANK, ATLANTA
Lender
By: /s/ Xxxxx X. Edge
----------------------------------------------
Name: Xxxxx X.Edge
Title: Director
Fifth Amendment to Canadian Credit Agreement
THE BANK OF NEW YORK
Lender
By: /s/ Xxxxxxx X.Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, TORONTO
BRANCH
Lender
By: /s/ Xxxx XxXxxxxx
----------------------------------------------
Name: Xxxx XxXxxxxx
Title: Authorized Representative
By: /s/ Xxxxxxxxx Xxxx
----------------------------------------------
Name: Xxxxxxxxx Xxxx
Title: Authorized Representative
THE FUJI BANK, LIMITED
Lender
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President & Manager
UBS AG, STAMFORD BRANCH
Lender
By: /s/ Xxxxxxxx X'Xxxxx
----------------------------------------------
Name: Xxxxxxxx X'Xxxxx
Title: Director
Banking Products Services
By: /s/ Xxxxxxx X. Saint
----------------------------------------------
Name: Xxxxxxx X. Saint
Title: Associate Director
Banking Products Services, US
UMB BANK
Lender
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Community Bank President
Fifth Amendment to Canadian Credit Agreement
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
Lender
By:
-----------------------------------------------
Name:
Title:
By:
-----------------------------------------------
Name:
Title:
Fifth Amendment to Canadian Credit Agreement
Fifth Amendment
CONSENT AND AGREEMENT
Devon Energy Corporation, a Delaware corporation ("Canadian
Guarantor"), hereby (i) consents to the provisions of this Amendment and the
transactions contemplated herein, (ii) ratifies and confirms the Guaranty dated
as of August 29, 2000 made by it for the benefit of Canadian Agent and Lenders
executed pursuant to the Credit Agreement and the other Canadian Loan Documents,
(iii) agrees that all of its respective obligations and covenants thereunder
shall remain unimpaired by the execution and delivery of this Amendment and the
other documents and instruments executed in connection herewith, and (iv) agrees
that the Canadian Guaranty and such other Canadian Loan Documents shall remain
in full force and effect.
DEVON ENERGY CORPORATION
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Treasurer
Fifth Amendment to Canadian Credit Agreement
