EXHIBIT 10.2
FIRST AMENDMENT TO AMENDED AND RESTATED
CANADIAN CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CANADIAN CREDIT AGREEMENT
(herein called this "Amendment") made as of the Effective Date (defined below in
Section 3.1), by and among Northstar Energy Corporation, an Alberta corporation,
and Devon Canada Corporation, an Alberta corporation (herein collectively,
called "Canadian Borrowers"), Bank of America, N.A., acting through its Canadian
Branch, individually and as administrative agent (herein called "Canadian
Agent"), and the Canadian Lenders party to this Amendment. The Offer for
Extension set forth in this Amendment is made by the undersigned Canadian
Lenders and shall be open for acceptance by Canadian Borrowers until (and
including) June 5, 2003.
W I T N E S S E T H:
WHEREAS, Canadian Borrowers, Canadian Agent and Canadian Lenders
entered into that certain Amended and Restated Canadian Credit Agreement dated
as of June 7, 2002 (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; and
WHEREAS, pursuant to, and in compliance with the terms of, Section
1.6(a) of the Original Agreement, Canadian Borrowers have delivered to Canadian
Agent a Request for an Offer of Extension and a copy thereof has been provided
to all Canadian Lenders; and
WHEREAS, after taking into account the reallocations described in
Section 3.2 of this Amendment, all of the Canadian Lenders have agreed to accept
such Request for an Offer of Extension; and
WHEREAS, all of the Canadian Lenders have agreed to extend the Canadian
Revolving Period until the Canadian Conversion Date as described in Section 2.1
of this Amendment and Canadian Agent hereby makes an Offer of Extension to
Canadian Borrowers on such terms; and
WHEREAS, Canadian Borrowers, Canadian Agent and Canadian Lenders party
to this Amendment 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 Borrowers, 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 (defined below) 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.
"Amendment" means this First Amendment to the Original
Agreement.
"Canadian Agreement" means the Original Agreement as amended
hereby.
"Effective Date" has the meaning given to such term in Section
3.1.
"Exiting Canadian Lenders" means Bayerische Landesbank
Girozentrale, Toronto Branch, and Local Oklahoma Bank.
"New Canadian Lenders" means those financial institutions
listed as a Canadian Lender on Annex II hereto that are not Canadian
Lenders under the Original Agreement.
ARTICLE II.
Amendments to Original Agreement
Section 2.1. Defined Terms.
(a) The following definitions are hereby added to Annex I to the
Original Agreement in alphabetical order:
"'Canadian LC Collateral' means amounts delivered to Canadian
Agent pursuant to Section 2.11 of the Canadian Agreement and held as
security for Canadian LC Obligations and the other Canadian
Obligations."
"'Existing RBC Letters of Credit' means those "Letters of
Credit" (as defined by the RBC Credit Agreement) issued pursuant to the
RBC Credit Agreement and listed on any Transfer Notice (as defined in
Section 10.24)."
"'RBC Credit Agreement' means that certain Credit Agreement
dated as of July 25, 2002, among the Canadian Borrowers, Royal Bank of
Canada, individually and as administrative agent, and the financial
institutions party thereto, as amended or supplemented."
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(b) The following definitions in Annex I to the Original Agreement are
hereby amended in their entirety to read as follows:
"'Canadian Conversion Date' means the date which is 364 days
after the date on which Canadian Borrowers execute and deliver to
Canadian Agent the First Amendment to Amended and Restated Canadian
Credit Agreement among Canadian Borrowers, Canadian Agent and Canadian
Lenders, or such later day to which the Canadian Conversion Date is
extended pursuant to Section 1.6 of the Canadian Agreement.
"'Canadian LC Issuer' means, with respect to any Letter of
Credit, the issuer of such Letter of Credit, which shall be, at the
request of the applicable Canadian Borrower pursuant to Sections 2.6 of
the Canadian Agreement, (a) Bank of America, (b) with respect to the
Letters of Credit described in Section 10.24 or any other Letters of
Credit consented to by Royal Bank of Canada, Royal Bank of Canada, or
(c) another Canadian Lender that is approved by Canadian Agent and
Canadian Borrowers and that agrees to be bound by the provisions of the
Canadian Agreement as a Canadian LC Issuer in form acceptable to
Canadian Agent and Canadian Borrowers, and their respective successors
in such capacities."
"'Unrestricted Subsidiary' means any corporation, association,
partnership, limited liability company, joint venture, or other
business or corporate entity, enterprise or organization (i) which is
listed below in this definition, or (ii) in which US Borrower did not
own an interest (directly or indirectly) as of the Closing Date, which
thereafter became a Subsidiary of US Borrower and which, within 90 days
after becoming a Subsidiary of US Borrower, was designated as an
Unrestricted Subsidiary by US Borrower to US Agent; provided that (a)
in the event any such Subsidiary becomes a Material Subsidiary at any
time, such Subsidiary shall cease to be an Unrestricted Subsidiary at
such time and shall automatically become a Restricted Subsidiary and
(b) US Borrower may convert any Unrestricted Subsidiary to a Restricted
Subsidiary by delivering to US Agent written notice of such conversion
signed by the Senior Vice President - Finance, the Senior Vice
President - Corporate Finance and Development, the Vice President -
Corporate Finance, the Treasurer or the Vice President - Accounting of
US Borrower as of the effective date of such conversion, which notice
shall certify the following conditions precedent: (1) after giving
effect to such conversion, all representations and warranties in any
Loan Document applicable to such Subsidiary shall be true in all
material respects on and as of such date as if made on and as of the
date of such conversion (except to the extent that the facts upon which
such representations are based have been changed by the extension of
credit hereunder), and (2) after giving effect to such conversion, no
Default or Event of Default shall occur solely as a result of such
conversion. The Subsidiaries of US Borrower listed on Attachment 1 to
this Annex I shall initially be designated as Unrestricted
Subsidiaries."
(c) The definition of "LC Collateral" in Annex I of the Original
Agreement is hereby deleted in its entirety.
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Section 2.2. Conversion Fees. Subsection (e) of Section 1.5 of the
Original Agreement is hereby amended to replace the reference to "12.5 Basis
Points" with "25 Basis Points".
Section 2.3. Letters of Credit.
(a) The Original Agreement is hereby amended to replace each reference
to "LC Collateral" with "Canadian LC Collateral".
(b) Subsection (e) of Section 2.6 of the Original Agreement is hereby
amended in its entirety to read as follows: "(e) [Intentionally Omitted];".
(c) The last sentence of Section 2.7 of the Original Agreement is
hereby amended in its entirety to read as follows: "If any provisions of any LC
Application conflict with any provisions of this Agreement or are inconsistent
with the provisions of this Agreement, the provisions of this Agreement shall
govern and control."
(d) The last sentence of clause (i) and clause (ii) of Subsection (a)
of Section 2.8 of the Original Agreement is hereby amended to replace the
reference to "Default Rate" with "Default Rate applicable to Canadian Base Rate
Loans".
(e) Clause (a) of the first sentence of Section 2.9 of the Original
Agreement is hereby amended to replace the reference to "payable on the date of
issuance" with "payable, to the extent not previously paid, in arrears on the
last day of each Fiscal Quarter".
(f) Section 2.11 of the Original Agreement is hereby amended in its
entirety to read as follows:
"Section 2.11. Canadian LC Collateral.
(a) Canadian LC Obligations in Excess of Canadian Maximum
Credit Amount. If, after the making of all mandatory prepayments
required under Section 1.4(c), the outstanding Canadian LC Obligations
will exceed Canadian Maximum Credit Amount, then in addition to
prepayment of the entire principal balance of the Canadian Loans, the
applicable Canadian Borrower will immediately pay to Canadian Agent an
amount equal to such excess. Canadian Agent will hold such amount as
Canadian LC Collateral to apply against the remaining Canadian LC
Obligations outstanding under the Canadian Agreement and the other
Canadian Obligations, and such Canadian LC Collateral may be applied
from time to time to any Matured Canadian LC Obligations or other
Canadian Obligations which are due and payable. Neither this subsection
nor the following subsection shall, however, limit or impair any rights
which Canadian Agent or Canadian LC Issuer may have under any other
document or agreement relating to any Letter of Credit, Canadian LC
Collateral or Canadian LC Obligation, including, subject to the last
sentence of Section 2.7, any LC Application, or any rights which any
Lender
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Party may have to otherwise apply any payments by Canadian Borrowers
and any Canadian LC Collateral under Section 3.1.
(b) Acceleration of Canadian LC Obligations. If the Canadian
Obligations or any part thereof become immediately due and payable
pursuant to Section 8.1 then, unless Canadian Required Lenders
otherwise specifically elect to the contrary (which election may
thereafter be retracted by Canadian Required Lenders at any time), all
Canadian LC Obligations shall become immediately due and payable
without regard to whether or not actual drawings or payments on the
Letters of Credit have occurred, and the applicable Canadian Borrower
in respect of such Canadian LC Obligations shall be obligated to pay to
Canadian Agent immediately an amount equal to the aggregate Canadian LC
Obligations which are then outstanding to be held as Canadian LC
Collateral.
(c) Investment of Canadian LC Collateral. Pending application
thereof, all Canadian LC Collateral shall be invested by Canadian Agent
(i) at any time when no Default or Event of Default has occurred that
is continuing, in such Cash Equivalents as Canadian Borrowers may
direct in writing to US Agent and (ii) at any time when a Default or
Event of Default has occurred that is continuing, in such Cash
Equivalents as Canadian Agent may choose in its sole discretion. All
interest on (and other proceeds of) such Investments shall be
reinvested or applied to Matured Canadian LC Obligations or other
Canadian Obligations of the applicable Canadian Borrower which are due
and payable. When all Canadian Obligations have been satisfied in full,
including all Canadian LC Obligations, all Letters of Credit have
expired or been terminated, and all of the applicable Canadian
Borrower's reimbursement obligations in connection therewith have been
satisfied in full, Canadian Agent shall release to Canadian Borrowers
any remaining Canadian LC Collateral.
(d) Grant of Security Interest. Each Canadian Borrower hereby
assigns and grants to Canadian Agent a continuing security interest in
all Canadian LC Collateral paid by it to Canadian Agent, all
Investments purchased with such Canadian LC Collateral, and all
proceeds thereof to secure its Matured Canadian LC Obligations and the
other Canadian Obligations owing by it under the Canadian Loan
Documents. Each Canadian Borrower further agrees that Canadian Agent
shall have all of the rights and remedies of a secured party under the
Personal Property Security Act (Alberta) with respect to such security
interest and that an Event of Default under this Agreement shall
constitute a default for purposes of such security interest. When
either Canadian Borrower is required to provide Canadian LC Collateral
for any reason and fails to do so on the day when required, Canadian
Agent may without notice to Canadian Borrowers or any other Restricted
Person provide such Canadian LC Collateral (whether by transfers from
other accounts maintained with Canadian Agent, or otherwise) using any
available funds of the applicable Canadian Borrower or any other Person
also liable to make such payments."
Section 2.4. Gross Up. Section 3.2 of the Original Agreement is hereby
amended as follows:
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(a) to redesignate Subsection (f) thereof as Subsection (g),
(b) to replace the reference in such Subsection to "Except as provided
in paragraphs (d) and (e) of this Section 3.2," with "Except as provided in
subsections (d), (e), and (f) of this Section 3.2,", and
(c) to add a new Subsection (f) thereto immediately following
Subsection (e) thereof to read as follows:
"(f) If any Restricted Subsidiary executes and delivers a
guaranty pursuant to Section 7.1(m) and is required by applicable Law
to withhold and remit Withholding Taxes in respect of any payment made
by it under such guaranty,
then:
(x) the sum payable by such Restricted Subsidiary
shall be increased as necessary so that after making all
required deductions (including deductions applicable to
additional sums payable under this Section 3.2) each Lender
Party receives an amount equal to the sum it would have
received had no such deductions been made,
(y) such Restricted Subsidiary shall make such
deductions, and
(z) such Restricted Subsidiary shall pay the full
amount deducted to the relevant taxation authority or other
authority in accordance with applicable Law."
Section 2.5. Indebtedness. Subsection (m) of Section 7.1 of the
Original Agreement is hereby deleted and the following Subsections (m) and (n)
are hereby added to Section 7.1 of the Original Agreement to read as follows:
"(m) with respect to any Restricted Subsidiary that assumes
all or any portion of the Indebtedness described in Section
7.1(m)(i)(A) of the US Agreement or otherwise becomes liable for the
payment thereof to the holders thereof, (A) such Restricted
Subsidiary's obligations with respect to such Indebtedness and (B)
other Indebtedness of such Restricted Subsidiary with respect to
guaranties of Indebtedness of US Borrower and Devon Financing ULC, to
the extent US Borrower is in compliance with the terms of Section 7.8
of the US Agreement at the time such guaranties are executed and
delivered, provided that in each case such Restricted Subsidiary has
executed and delivered guaranties in form substantially similar to the
Devon Financing ULC Guaranties to Canadian Agent and US Agent,
respectively, pursuant to the Canadian Agreement and the US Agreement."
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"(n) miscellaneous items of Indebtedness of all Restricted
Persons (other than US Borrower) not otherwise permitted in subsections
(a) through (m) which do not in the aggregate exceed US $500,000,000 in
principal amount at any one time outstanding."
Section 2.6. Assignments and Participations. Subsection (a) of Section
10.6 of the Original Agreement is hereby amended to replace the reference to
"$20,000,000" with "$10,000,000". The penultimate sentence of subsection (f) of
Section 10.6 is hereby amended in its entirety to read as follows:
"If any Canadian LC Issuer resigns as a Canadian LC Issuer, it shall
retain all the rights and obligations of a Canadian LC Issuer hereunder
with respect to all Letters of Credit issued by it outstanding as of
the effective date of its resignation as a Canadian LC Issuer and all
Canadian LC Obligations with respect thereto (including the right to
require the Canadian Lenders to make Canadian Prime Rate Loans or fund
participations in unreimbursed amounts pursuant to Section 2.8)."
Section 2.7. Existing RBC Letters of Credit. The Original Agreement is
hereby amended to add a new Section 10.24 thereto immediately following Section
10.23 thereof to read as follows:
"Section 10.24. Existing RBC Letters of Credit. Provided that
all conditions precedent to the issuance of new Letters of Credit under
this Agreement set forth in Sections 2.6 and 4.3 are satisfied with
respect to the Royal Bank Letters of Credit described in the Transfer
Notice referred to below (except that with respect to the condition set
forth in clause 2.6(c), the date of expiration of such Royal Bank
Letters of Credit shall be no more than one year after the date the
Transfer Notice is received by Canadian Agent), upon receipt by
Canadian Agent of written notice from the Canadian Borrowers and Royal
Bank of Canada to transfer letters of credit issued under the RBC
Credit Agreement to this Agreement which shall specifically describe
such letters of credit (any such notice, a "Transfer Notice"), all
obligations of any Canadian Borrower and any Subsidiary of any Canadian
Borrower under the RBC Credit Agreement and any LC Application in
respect of the Existing RBC Letters of Credit (including, but not
limited to, all obligations to reimburse Royal Bank of Canada for
drawings thereunder) (a) are affirmed and continued in full force and
effect, subject to the last sentence of Section 2.7, under the terms of
this Agreement and the other Canadian Loan Documents, (b) in the case
of any such obligations of a Subsidiary of a Canadian Borrower, are
assumed by such Canadian Borrower (with such Subsidiary being released
of such obligations), and (c) shall constitute Canadian LC Obligations
hereunder. The Existing RBC Letters of Credit shall be deemed to have
been issued by Royal Bank of Canada (as Canadian LC Issuer) under, and
the Canadian LC Obligations in respect thereof shall be governed by and
have the benefits of, this Agreement, the related LC Applications
(subject to the last sentence of Section 2.7) and the other Canadian
Loan Documents."
Section 2.8. Unrestricted Subsidiaries. Attachment 1 to Annex I to the
Original Agreement is hereby amended by adding the Subsidiaries set forth in
Schedule 1 hereto.
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Section 2.9. Lenders Schedule. Annex II to this Amendment is hereby
substituted for Annex II to the Original Agreement.
Section 2.10. Waiver of Notice. Each Canadian Lender hereby waives the
requirement under Section 1.6(a) of the Original Agreement that a Request for an
Offer of Extension be made by a specific date prior to the current Canadian
Conversion Date of June 6, 2003 and further agrees that the date for acceptance
by Canadian Borrowers of the Offer of Extension made hereby shall be extended to
June 5, 2003, notwithstanding the terms of Section 1.6(b) of the Original
Agreement.
ARTICLE III.
Conditions of Effectiveness
Section 3.1. Effective Date. This Amendment shall become effective on
the date (the "Effective Date") on which Canadian Borrowers have executed and
delivered this Amendment to Canadian Agent (provided that Canadian Borrowers
shall have executed this Amendment on or before June 5, 2003) and the following
additional conditions are satisfied:
(a) Canadian Agent shall have received all of the following, at
Canadian Agent's office, in form, substance and date satisfactory to Canadian
Agent:
(i) this Amendment, duly executed by Canadian Borrowers,
Canadian Agent and all Canadian Lenders (other than the Exiting
Canadian Lenders).
(ii) a Canadian Note and a Competitive Bid Note duly executed
by each Canadian Borrower payable to each New Canadian Lender and a
Canadian Note to each other Canadian Lender whose Percentage Share of
the Canadian Maximum Credit Amount is changing after giving effect to
the provisions of this Amendment.
(iii) a certificate of the Vice President - Finance or the
Treasurer of each Canadian Borrower dated the date of this Amendment
certifying: (1) that all of the representations and warranties set
forth in Article IV hereof are true and correct at and as of such date,
and (2) that no Default exists at and as of such date.
(iv) a Consent and Agreement, duly executed by each Canadian
Guarantor.
(b) Canadian Borrowers shall have paid on or before such effective date
all 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. Special Effective Date Provisions.
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(a) From and after the Effective Date, (i) each Exiting Canadian Lender
shall cease to be a Canadian Lender under the Canadian Agreement, (ii) no
Exiting Canadian Lender shall have any obligations or liabilities under the
Canadian Agreement as a Canadian Lender with respect to the period from and
after the Effective Date, and, without limiting the foregoing, no Exiting
Canadian Lender shall have any commitment to make Canadian Loans under the
Canadian Agreement and (iii) no Exiting Canadian Lender shall have any rights as
a Canadian Lender under the Canadian Agreement or any other Canadian Loan
Document (other than rights under the Canadian Agreement expressly stated to
survive the termination of the Canadian Agreement and the repayment of amounts
outstanding thereunder). Canadian Borrowers and Canadian Lenders hereby
authorize Canadian Agent to enter into appropriate documentation with the
Exiting Canadian Lenders confirming the foregoing provisions of this subsection.
(b) From and after the Effective Date, each New Canadian Lender (i)
agrees that it shall be bound by the provisions of the Canadian Agreement as a
Canadian Lender thereunder and shall have the obligations of a Canadian Lender
thereunder, (ii) confirms that it has received a copy of the Canadian Agreement,
together with copies of the most recent financial statements delivered pursuant
to Section 6.2 thereof, as applicable, and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Amendment and to become a Canadian Lender on the basis of which
it has made such analysis and decision independently and without reliance on
Canadian Agent or any other Canadian Lender, (iii) appoints and authorizes
Canadian Agent to take such action as agent on its behalf and to exercise such
powers as it deems necessary under the Canadian Agreement and any other Canadian
Loan Document as are delegated to Canadian Agent by the terms thereof, together
with such powers as are reasonably incidental thereto and (iv) agrees that (1)
it will, independently and without reliance on Canadian Agent or any other
Canadian Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Canadian Loan Documents, and (2) it will perform in
accordance with their terms all of the obligations which by the terms of the
Canadian Loan Documents are required to be performed by it as a Canadian Lender.
(c) Canadian Lenders hereby authorize Canadian Agent and Canadian
Borrowers (i) in the event any Canadian Loans are outstanding on the Effective
Date, to request Canadian Loans from the Canadian Lenders (other than the
Exiting Canadian Lenders), to make prepayments of Canadian Loans, and (ii) to
re-allocate commitments under the Canadian Agreement among Canadian Lenders in
order to ensure that, upon the effectiveness of this Amendment, the Canadian
Loans (if any) and commitments of Canadian Lenders shall be outstanding on a
ratable basis in accordance with their respective Percentage Shares, and no such
borrowing, prepayment or re-allocation shall violate any provisions of the
Canadian Agreement. Canadian Lenders hereby waive any requirements for minimum
amounts of prepayments of Canadian Loans, ratable re-allocations of the
Percentage Shares of Canadian Lenders under the Canadian Agreement and ratable
payments on account of the principal or interest of any Canadian Loan under the
Canadian Agreement to the extent such prepayment, re-allocation or payments are
required pursuant to this subsection.
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(d) From and after the Effective Date, Royal Bank of Canada agrees that
it shall be bound by the provisions of the Canadian Agreement as a Canadian LC
Issuer thereunder and shall have the obligations of a Canadian LC Issuer
thereunder, but solely with respect to the Letters of Credit described in the
definition of "Canadian LC Issuer" thereunder.
ARTICLE IV.
Representations and Warranties
Section 4.1. Representations and Warranties of Canadian Borrowers. In
order to induce the Canadian Lenders to enter into this Amendment, each 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) Each 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. Each 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 such Canadian Borrower hereunder.
(c) The execution and delivery by each Canadian Borrower of this
Amendment, the performance by each 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
any Canadian Borrower, or (C) any agreement, judgment, license, order or permit
applicable to or binding upon any 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 any
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 any 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 each 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.
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(e) The audited annual Consolidated financial statements of US Borrower
dated as of December 31, 2002 and the unaudited quarterly Consolidated financial
statements of US Borrower dated as of March 31, 2003 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 Consolidated financial condition or
businesses of US Borrower.
ARTICLE V.
Miscellaneous
Section 5.1. Ratification of Agreements. The Original Agreement as
hereby amended and restated 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 Borrowers herein shall survive the
execution and delivery of this Amendment and the performance hereof, and shall
further survive until all of the Canadian Obligations are paid in full. All
statements and agreements contained in any certificate or instrument delivered
by Canadian Borrowers 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 Borrowers 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.
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.
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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.]
IN WITNESS WHEREOF, this Amendment is executed as of the date first
above written.
NORTHSTAR ENERGY CORPORATION
Canadian Borrower
By: /s/ Xxxx Xxxxxxxx
-------------------------------------------------
Xxxx Xxxxxxxx
Vice President - Finance
DEVON CANADA CORPORATION
Canadian Borrower
By: /s/ Xxxx Xxxxxxxx
-------------------------------------------------
Xxxx Xxxxxxxx
Vice President - Finance
BANK OF AMERICA, N.A., acting through its
Canadian branch, Canadian Agent, Canadian
LC Issuer and Lender
By: /s/ Xxxxxx Sales xx Xxxxxxx
-------------------------------------------------
Name: Xxxxxx Sales xx Xxxxxxx
Title: Assistant Vice President
ROYAL BANK OF CANADA, Canadian LC
Issuer and Lender
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Manager
ABN AMRO BANK, N.V., CANADA BRANCH
Lender
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Vice President
By: /s/ Xxxxx Xxxxx
-------------------------------------------------
Name: Xxxxx Xxxxx
Title: Group Vice President
BANK OF MONTREAL
Lender
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
BANK OF OKLAHOMA, N.A.
Lender
By: /s/ T. Xxx Xxxxxxxx
-------------------------------------------------
Name: T. Xxx Xxxxxxxx
Title: Senior Vice President
XXXX XXX, XX, XXXXXX BRANCH
Lender
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
BARCLAYS BANK PLC
Lender
By: /s/ Xxxxxxxx X. Xxxx
-------------------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Director
Loan Transaction Management
BNP PARIBAS
Lender
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxxxx
-------------------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
CITIBANK, N.A., Canadian branch
Lender
By: /s/
-------------------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
Lender
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON
Lender
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Director
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
DEN NORSKE BANK ASA
Lender
By: /s/ Xxxx Xxxxx
-------------------------------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President
By: /s/ Xxxx Xxxxxxxxxxx
-------------------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Vice President
DEUTSCHE BANK AG, CANADA BRANCH
Lender
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
ING CAPITAL, LLC
Lender
By: /s/ Xxxxxx Scherpenhuijsen Rom
-------------------------------------------------
Name: Xxxxxx Scherpenhuijsen Rom
Title: Managing Director
JPMORGAN CHASE BANK, TORONTO BRANCH
Lender
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXX XXXXX CAPITAL CANADA INC.
Lender
By: /s/ Xxxxx Xxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
Xxxxxxx Xxxxx Financial Assets Inc.
XXXXXX XXXXXXX SENIOR FUNDING, INC.
CANADIAN DIVISION
Lender
By: /s/
-------------------------------------------------
Name:
Title:
SOCIETE GENERALE
Lender
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
SOUTHWEST BANK OF TEXAS, N.A.
Lender
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President, Energy Lending
THE BANK OF NEW YORK
Lender
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
Lender
By: /s/ Xxxx xxx Xxxxxx
-------------------------------------------------
Name: Xxxx xxx Xxxxxx
Title: Associate
THE BANK OF TOKYO - MITSUBISHI, LTD.
Lender
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: VP & Manager
By: /s/ Xxx Fort
-------------------------------------------------
Name: Xxx Fort
Title: Vice President
UBS AG, CAYMAN ISLANDS BRANCH
Lender
By: /s/ Xxxxxxxx X'Xxxxx
-------------------------------------------------
Name: Xxxxxxxx X'Xxxxx
Title: Director
By: /s/ Xxxxxxx Saint
-------------------------------------------------
Name: Xxxxxxx Saint
Title: Associate Director
UMB BANK, n.a.
Lender
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Community Bank President
WACHOVIA BANK, NATIONAL
ASSOCIATION
Lender
By: /s/ Xxxxx Xxxx
-------------------------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
XXXXX FARGO BANK TEXAS, N.A.
Lender
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
First Amendment
CONSENT AND AGREEMENT
Each undersigned Guarantor hereby (i) consents to the provisions of
this Amendment and the transactions contemplated herein, (ii) ratifies and
confirms its Guaranty dated as of June 7, 2002 made by it for the benefit of
Canadian Agent and Lenders executed pursuant to the Canadian 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 such Guaranty and such other
Canadian Loan Documents shall remain in full force and effect.
DEVON FINANCING CORPORATION, U.L.C.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
DEVON ENERGY CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President-
Corporate Finance and Development
