EXHIBIT 10.1
FIRST AMENDMENT TO AMENDED AND RESTATED
US CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED US CREDIT AGREEMENT
(herein called this "Amendment") made as of the Effective Date (defined below in
Section 3.1), by and among Devon Energy Corporation, a Delaware corporation ("US
Borrower"), Bank of America, N.A., individually and as administrative agent ("US
Agent"), and the US Lenders party to this Amendment. The Offer for Extension set
forth in this Amendment is made by the undersigned Tranche B Lenders and shall
be open for acceptance by US Borrower until (and including) June 5, 2003.
W I T N E S S E T H:
WHEREAS, US Borrower, US Agent and US Lenders entered into that certain
Amended and Restated US 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 US Lenders became obligated
to make loans to US Borrower as therein provided; and
WHEREAS, pursuant to, and in compliance with the terms of, Section
1.1(c) of the Original Agreement, US Borrower has delivered to US Agent a
Request for Offer of Extension and a copy thereof has been provided to all
Tranche B Lenders; and
WHEREAS, after taking into account the reallocations described in
Section 3.2 of this Amendment, all of the Tranche B Lenders have agreed to
accept such Request for Offer of Extension; and
WHEREAS, all of the Tranche B Lenders have agreed to extend the Tranche
B Revolving Period until the Tranche B Conversion Date as described in Section
2.2 of this Amendment and US Agent hereby makes an Offer of Extension to US
Borrower on such terms; and
WHEREAS, US Borrower, US Agent and US Lenders party to this Amendment
desire to amend the Original Agreement to, among other things, (a) add a new
Letter of Credit subfacility to the Tranche B credit facility and (b) provide
that the Existing Ocean Letters of Credit (defined below) shall be deemed to
have been issued under the Original Agreement;
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 US Lenders to US
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 (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.
"Effective Date" has the meaning given to such term in Section
3.1.
"Exiting Tranche B Lenders" means Bayerische Landesbank
Girozentrale, Toronto Branch, and Local Oklahoma Bank.
"New Tranche B Lenders" means those financial institutions
listed as a Tranche B Lender on Annex II hereto that are not Tranche B
Lenders under the Original Agreement.
"US Agreement" means the Original Agreement as amended hereby.
ARTICLE II.
Amendments to Original Agreement
Section 2.1. Defined Terms - Tranche A & Tranche B Facilities.
(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 Ocean Letters of Credit' means those "Letters of
Credit" (as defined by the Ocean Credit Agreement) issued pursuant to
the Ocean Credit Agreement, as listed on Schedule 4."
"'Ocean' means Ocean Energy, Inc., a Delaware corporation,
which changed its name as of April 25, 2003 to ▇▇▇▇▇ ▇▇▇ Operating,
Inc."
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"'Ocean Credit Agreement' means that certain Revolving Credit
Agreement dated as of May 31, 2002, among Ocean, JPMorgan Chase Bank,
as administrative agent, and the financial institutions party thereto,
as amended or supplemented."
"'TRA LC Collateral' means amounts delivered to US Agent
pursuant to Section 2.6 of the US Agreement and held as security for
TRA US LC Obligations and the other US Obligations."
"'TRA Letters of Credit' means all Letters of Credit issued
pursuant to Article II of the US Agreement and those Existing Ocean
Letters of Credit that are designated as TRA Letters of Credit on
Schedule 4."
"'TRA Matured US LC Obligations' means all amounts paid by US
LC Issuer on drafts or demands for payment drawn or made under or
purported to be under any TRA Letter of Credit issued under the US
Agreement and all other amounts due and owing to US LC Issuer under any
LC Application for any such TRA Letter of Credit, to the extent the
same have not been repaid to US LC Issuer (with the proceeds of Loans
or otherwise)."
"'TRA US LC Obligations' means, at the time in question, with
respect to the US Agreement, the sum of all TRA Matured US LC
Obligations plus the maximum amounts which US LC Issuer might then or
thereafter be called upon to advance under all TRA Letters of Credit
issued under the US Agreement then outstanding."
"'TRA US LC Sublimit' means US $200,000,000."
"'US Facility Commitment Period" means (i) for purposes of the
Competitive Bid Notes allocated to the Tranche A Loans, the period from
the date of this Agreement until the Tranche A Maturity Date and (ii)
for Competitive Bid Notes allocated to the Tranche B Loans, the period
from the date of this Agreement until the Tranche B Maturity Date.
(b) The following definitions in Annex I to the Original Agreement are
hereby amended in their entirety to read as follows:
"'Matured US LC Obligations' means all TRA Matured US LC
Obligations and all TRB Matured US LC Obligations."
"'Tranche A Facility Usage' means, at the time in question,
the aggregate amount of Tranche A Loans and TRA US LC Obligations
outstanding at such time under the US Agreement."
"'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
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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."
"'US LC Issuer' means, with respect to any Letter of Credit,
the issuer of such Letter of Credit, which shall be, at the request of
US Borrower pursuant to Sections 2.1 and 2.1A of the US Agreement (as
applicable), (a) Bank of America, (b) JPMorgan Chase Bank, or (c)
another US Lender that is approved by US Agent and US Borrower and that
agrees to be bound by the provisions of the US Agreement as a US LC
Issuer in form acceptable to US Agent and US Borrower, and their
respective successors in such capacities."
"'US LC Obligations' means all TRA US LC Obligations and all
TRB US LC Obligations."
(c) Paragraph (a) of the definition of Percentage Share in Annex I to
the Original Agreement is hereby amended to replace the reference to "when no US
Loans are outstanding" with the reference "when no US Loans or US LC Obligations
are outstanding".
(d) The definitions of "LC Collateral" and "US LC Sublimit" in Annex I
of the Original Agreement are hereby deleted in their entirety. The definition
of "Tranche A Percentage Share" in Annex I of the Original Agreement is hereby
amended to replace each reference to "US LC Obligations" with "TRA US LC
Obligations".
Section 2.2. Defined Terms - Tranche B Facility.
(a) The following definitions are hereby added to Annex I to the
Original Agreement in alphabetical order:
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"'TRB LC Collateral' means amounts delivered to US Agent
pursuant to Section 2.6A of the US Agreement and held as security for
TRB US LC Obligations and the other US Obligations."
"'TRB Letters of Credit' means all Letters of Credit issued
pursuant to Article IIA of the US Agreement and those Existing Ocean
Letters of Credit that are designated as TRB Letters of Credit on
Schedule 4."
"'TRB Matured US LC Obligations' means all amounts paid by US
LC Issuer on drafts or demands for payment drawn or made under or
purported to be under any TRB Letter of Credit issued under the US
Agreement and all other amounts due and owing to US LC Issuer under any
LC Application for any such TRB Letter of Credit, to the extent the
same have not been repaid to US LC Issuer (with the proceeds of Loans
or otherwise)."
"'TRB US LC Obligations' means, at the time in question, with
respect to the US Agreement, the sum of all TRB Matured US LC
Obligations plus the maximum amounts which US LC Issuer might then or
thereafter be called upon to advance under all TRB Letters of Credit
issued under the US Agreement then outstanding."
"'TRB US LC Sublimit' means US $100,000,000."
(b) The following definitions in Annex I to the Original Agreement are
hereby amended in their entirety to read as follows:
"'Tranche B Conversion Date' means the date which is 364 days
after the date on which US Borrower executes and delivers to US Agent
the First Amendment to Amended and Restated US Credit Agreement among
US Borrower, US Agent and certain US Lenders, or such later day to
which the Tranche B Conversion Date is extended pursuant to Section 1.1
of the US Agreement."
"'Tranche B Facility Usage' means, at the time in question,
the aggregate amount of Tranche B Loans and TRB US LC Obligations
outstanding at such time under the US Agreement."
"'Tranche B Maturity Date' means the date which is one year
and one day after the Tranche B Conversion Date."
"'Tranche B Percentage Share' means with respect to any
Tranche B Lender (i) when used in Article I of the US Agreement or in
Article IIA of the US Agreement, in any Borrowing Notice thereunder or
when no Tranche B Loans are outstanding, the Tranche B percentage set
forth opposite such Tranche B Lender's name on the Lenders Schedule as
modified by assignments of a Tranche B Lender's rights and obligations
under the US Agreement made by or to such Lender in accordance with the
terms of the US Agreement, and (ii) when used otherwise, the percentage
obtained by dividing (x) the
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sum of the unpaid principal balance of such Lender's Tranche B Loans
and such Lender's Percentage Share of the TRB US LC Obligations, by (y)
the sum of the aggregate unpaid principal balance of all Tranche B
Loans at such time plus the aggregate amount of all TRB US LC
Obligations outstanding at such time."
Section 2.3. Fees.
(a) The first sentence of Subsection (e) of Section 1.5 of the Original
Agreement is hereby amended to add the following proviso thereto to read as
follows:
"; provided that for purposes of this calculation, Tranche B Facility
Usage shall exclude outstanding TRB US LC Obligations to the extent
that US Borrower has delivered TRB LC Collateral in respect thereof
pursuant to Section 2.6A(c)."
(b) Subsection (f) 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 2.4. Tranche A Letters of Credit.
(a) The Original Agreement is hereby amended to rename Article II
thereof to read as follows: "ARTICLE II - Tranche A Letters of Credit".
(b) Article II of the Original Agreement is hereby amended to (i)
replace each reference to "Letter of Credit" with "TRA Letter of Credit", (ii)
replace each reference to "Letters of Credit" with "TRA Letters of Credit",
(iii) replace each reference to "Matured US LC Obligation" with "TRA Matured US
LC Obligation", (iv) replace each reference to "Matured US LC Obligations" with
"TRA Matured US LC Obligations", (v) replace each reference to "US LC
Obligation" with "TRA US LC Obligation", (vi) replace each reference to "US LC
Obligations" with "TRA US LC Obligations", (vii) replace each reference to "US
LC Sublimit" with "TRA US LC Sublimit", and (viii) replace each reference to "LC
Collateral" with "TRA LC Collateral".
(c) Subsection (e) of Section 2.1 of the Original Agreement is hereby
amended in its entirety to read as follows: "(e) [Intentionally Omitted];".
(d) The last sentence of Section 2.2 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."
(e) The last sentence of Subsection (b) of Section 2.3 of the Original
Agreement is hereby amended to replace the reference to "Default Rate" with
"Default Rate applicable to US Base Rate Loans".
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(f) Clause (a) of the first sentence of Section 2.4 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".
(g) Section 2.6 of the Original Agreement is hereby amended in its
entirety to read as follows:
"Section 2.6. LC Collateral.
(a) TRA US LC Obligations in Excess of Tranche A Maximum
Credit Amount. If, after the making of all mandatory prepayments
required under Section 1.6(b), the TRA US LC Obligations outstanding
under the US Agreement will exceed the Tranche A Maximum Credit Amount,
then in addition to prepayment of the entire principal balance of the
Tranche A Loans and US Swing Loans, US Borrower will immediately pay to
US Agent an amount equal to such excess. US Agent will hold such amount
as TRA LC Collateral to secure the remaining TRA US LC Obligations
outstanding under the US Agreement and the other US Obligations, and
such TRA LC Collateral may be applied from time to time to any TRA
Matured US LC Obligations or other US Obligations which are due and
payable. Neither this subsection nor the following subsection shall,
however, limit or impair any rights which US Agent or US LC Issuer may
have under any other document or agreement relating to any TRA Letter
of Credit, TRA LC Collateral or TRA US LC Obligation, including,
subject to the last sentence of Section 2.2, any LC Application, or any
rights which any Lender Party may have to otherwise apply any payments
by US Borrower and any TRA LC Collateral under Section 3.1.
(b) Acceleration of US LC Obligations. If the US Obligations
or any part thereof become immediately due and payable pursuant to
Section 8.1 then, unless Tranche A Required Lenders otherwise
specifically elect to the contrary (which election may thereafter be
retracted by Tranche A Required Lenders at any time), all TRA US 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 US Borrower shall be obligated to pay to US Agent
immediately an amount equal to the aggregate TRA US LC Obligations
which are then outstanding to be held as TRA LC Collateral.
(c) Investment of TRA LC Collateral. Pending application
thereof, all TRA LC Collateral shall be invested by US Agent (i) at any
time when no Default or Event of Default has occurred that is
continuing, in such Cash Equivalents as US Borrower 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 US
Agent may choose in its sole discretion. All interest on (and other
proceeds of) such Investments shall be reinvested or applied to TRA
Matured US LC Obligations or other US Obligations which are due and
payable; provided that so long as no Default or Event of Default has
occurred that is continuing, such interest on or other earnings in
respect of such Investments shall be promptly paid to US Borrower upon
its written request to US Agent. When all US
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Obligations have been satisfied in full, including all TRA US LC
Obligations, all TRA Letters of Credit have expired or been terminated,
and all of US Borrower's reimbursement obligations in connection
therewith have been satisfied in full, US Agent shall release to US
Borrower any remaining TRA LC Collateral.
(d) Grant of Security Interest. US Borrower hereby assigns and
grants to US Agent a continuing security interest in all TRA LC
Collateral paid by it to US Agent, all Investments purchased with such
TRA LC Collateral, and all proceeds thereof to secure its TRA Matured
US LC Obligations and the other US Obligations hereunder, each US Note,
and the other US Loan Documents. US Borrower further agrees that US
Agent shall have all of the rights and remedies of a secured party
under the Uniform Commercial Code as adopted in the State of Texas 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 US Borrower is required to provide TRA LC Collateral for
any reason and fails to do so on the day when required, US Agent may
without notice to US Borrower or any other Restricted Person provide
such TRA LC Collateral (whether by transfers from other accounts
maintained with US Agent, or otherwise) using any available funds of US
Borrower or any other Person also liable to make such payments."
Section 2.5. Tranche B Letters of Credit. The Original Agreement is
hereby amended to add a new Article IIA thereto immediately following Article II
thereof to read as follows:
"ARTICLE IIA - Tranche B Letters of Credit
Section 2.1A. Tranche B Letters of Credit. Subject to the
terms and conditions hereof, US Borrower may during the Tranche B
Revolving Period request US LC Issuer to issue one or more TRB Letters
of Credit, provided that, after taking such TRB Letter of Credit into
account:
(a) the Tranche B Facility Usage does not exceed the Tranche B
Maximum Credit Amount at such time;
(b) the aggregate amount of TRB US LC Obligations arising from
TRB Letters of Credit issued under this Agreement at such time does not
exceed the TRB US LC Sublimit;
(c) the expiration date of such TRB Letter of Credit is prior
to the end of the Tranche B Maturity Date;
(d) such TRB Letter of Credit is to be used for general
corporate purposes of US Borrower or one or more of its Subsidiaries;
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(e) the issuance of such TRB Letter of Credit will be in
compliance with all applicable governmental restrictions, policies, and
guidelines and will not subject US LC Issuer to any cost which is not
reimbursable under Article III;
(f) the form and terms of such TRB Letter of Credit are
acceptable to US LC Issuer in its reasonable discretion;
(g) all other conditions in this Agreement to the issuance of
such TRB Letter of Credit have been satisfied.
Subject to the terms and conditions set forth herein, US LC Issuer
will, in reliance upon the agreements of the other Tranche B Lenders
set forth in Section 2.3A(b), honor any such request if the foregoing
conditions (a) through (g) (in the following Section 2.2A called the
"TRB LC Conditions") have been met as of the date of issuance of such
TRB Letter of Credit. US LC Issuer may choose to honor any such request
for any other TRB Letter of Credit but has no obligation to do so and
may refuse to issue any other requested TRB Letter of Credit for any
reason which US LC Issuer in its sole discretion deems relevant.
Section 2.2A. Requesting Letters of Credit. US Borrower must
make written application for any TRB Letter of Credit at least three
Business Days before the date on which US Borrower desires for US LC
Issuer to issue such TRB Letter of Credit. By making any such written
application US Borrower shall be deemed to have represented and
warranted that the TRB LC Conditions described in Section 2.1A will be
met as of the date of issuance of such TRB Letter of Credit. Each such
written application for a TRB Letter of Credit must be made in writing
in the form customarily used by the US LC Issuer, the terms and
provisions of which are hereby incorporated herein by reference (or in
such other form as may mutually be agreed upon by US LC Issuer and US
Borrower). Two Business Days after the TRB LC Conditions for a TRB
Letter of Credit have been met as described in Section 2.1A (or if US
LC Issuer otherwise desires to issue such TRB Letter of Credit), US LC
Issuer will issue such TRB Letter of Credit at US LC Issuer's office.
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.
Section 2.3A. Reimbursement and Participations.
(a) Reimbursement by US Borrower. If the beneficiary of any
TRB Letter of Credit issued hereunder makes a draft or other demand for
payment thereunder, then Tranche B Loans that are US Base Rate Loans
shall be made by Tranche B Lenders to US Borrower in the amount of such
draft or demand notwithstanding the fact that one or more conditions
precedent to the making of such US Base Rate Loans may not have been
satisfied. Such US Base Rate Loans shall be made concurrently with US
LC Issuer's payment of such draft or demand without any request
therefor by US Borrower and shall
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be immediately used by US LC Issuer to repay the amount of the
resulting TRB Matured US LC Obligation.
(b) Participation by Lenders. US LC Issuer irrevocably agrees
to grant and hereby grants to each Tranche B Lender, and to induce US
LC Issuer to issue TRB Letters of Credit hereunder, each Tranche B
Lender irrevocably agrees to accept and purchase and hereby accepts and
purchases from US LC Issuer, on the terms and conditions hereinafter
stated and for such Tranche B Lender's own account and risk, an
undivided interest equal to such Tranche B Lender's Tranche B
Percentage Share of US LC Issuer's obligations and rights under each
TRB Letter of Credit issued hereunder and the amount of each TRB
Matured US LC Obligation paid by US LC Issuer thereunder. Each Tranche
B Lender unconditionally and irrevocably agrees with US LC Issuer that,
if a TRB Matured US LC Obligation is paid under any TRB Letter of
Credit issued hereunder for which US LC Issuer is not reimbursed in
full, whether pursuant to Section 2.3A(a) above or otherwise, such
Tranche B Lender shall (in all circumstances and without set-off or
counterclaim) pay to US LC Issuer on demand, in immediately available
funds at US LC Issuer's address for notices hereunder, such Tranche B
Lender's Tranche B Percentage Share of such TRB Matured US LC
Obligation (or any portion thereof which has not been reimbursed by US
Borrower). Each Tranche B Lender's obligation to pay US LC Issuer
pursuant to the terms of this subsection is irrevocable and
unconditional. If any amount required to be paid by any Tranche B
Lender to US LC Issuer pursuant to this subsection is paid by such
Tranche B Lender to US LC Issuer within three Business Days after the
date such payment is due, US LC Issuer shall in addition to such amount
be entitled to recover from such Tranche B Lender, on demand, interest
thereon calculated from such due date at the Federal Funds Rate. If any
amount required to be paid by any Tranche B Lender to US LC Issuer
pursuant to this subsection is not paid by such Tranche B Lender to US
LC Issuer within three Business Days after the date such payment is
due, US LC Issuer shall in addition to such amount be entitled to
recover from such Tranche B Lender, on demand, interest thereon
calculated from such due date at the Default Rate applicable to US Base
Rate Loans.
(c) Distributions to Participants. Whenever US LC Issuer has
in accordance with this section received from any Tranche B Lender
payment of such Tranche B Lender's Tranche B Percentage Share of any
TRB Matured US LC Obligation, if US LC Issuer thereafter receives any
payment of such TRB Matured US LC Obligation or any payment of interest
thereon (whether directly from US Borrower or by application of TRB LC
Collateral or otherwise, and excluding only interest for any period
prior to US LC Issuer's demand that such Tranche B Lender make such
payment of its Tranche B Percentage Share), US LC Issuer will
distribute to such Tranche B Lender its Tranche B Percentage Share of
the amounts so received by US LC Issuer; provided, however, that if any
such payment received by US LC Issuer must thereafter be returned by US
LC Issuer, such Tranche B Lender shall return to US LC Issuer the
portion thereof which US LC Issuer has previously distributed to it.
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(d) Calculations. A written advice setting forth in reasonable
detail the amounts owing under this section, submitted by US LC Issuer
to US Borrower or any Tranche B Lender from time to time, shall be
conclusive, absent manifest error, as to the amounts thereof.
Section 2.4A. Letter of Credit Fees. In consideration of US LC
Issuer's issuance of any TRB Letter of Credit, prior to the delivery of
TRB LC Collateral pursuant to Section 2.6A(c) on the Tranche B
Conversion Date, US Borrower agrees to pay (a) to US LC Issuer for its
own account, a letter of credit fronting fee at a rate equal to 12.5
Basis Points per annum multiplied by the face amount of such TRB Letter
of Credit, payable in arrears on the last day of each Fiscal Quarter
and (b) to US Agent, for the account of all Tranche B Lenders in
accordance with their respective Tranche B Percentage Shares, a letter
of credit issuance fee calculated by applying the Applicable Margin for
Tranche B Loans to the face amount of all TRB Letters of Credit
outstanding on each day, payable in arrears on the last day of each
Fiscal Quarter. Following the delivery of such TRB LC Collateral, US
Borrower agrees to pay (a) to US LC Issuer for its own account, a
letter of credit fronting fee at a rate equal to 6.25 Basis Points per
annum multiplied by the face amount of such TRB Letter of Credit, and
(b) to US Agent, for the account of all Tranche B Lenders in accordance
with their respective Tranche B Percentage Shares, a letter of credit
issuance fee at a rate equal to 12.5 Basis Points per annum multiplied
by the face amount of all TRB Letters of Credit outstanding on each
day, in each case, payable in arrears on the last day of each Fiscal
Quarter.
Section 2.5A. No Duty to Inquire.
(a) Drafts and Demands. US LC Issuer is authorized and
instructed to accept and pay drafts and demands for payment under any
TRB Letter of Credit without requiring, and without responsibility for,
any determination as to the existence of any event giving rise to said
draft, either at the time of acceptance or payment or thereafter. US LC
Issuer is under no duty to determine the proper identity of anyone
presenting such a draft or making such a demand (whether by tested
telex or otherwise) as the officer, representative or agent of any
beneficiary under any TRB Letter of Credit, and payment by US LC Issuer
to any such beneficiary when requested by any such purported officer,
representative or agent is hereby authorized and approved. US Borrower
releases each Lender Party from, and agrees to hold each Lender Party
harmless and indemnified against, any liability or claim in connection
with or arising out of the subject matter of this section, WHICH
INDEMNITY SHALL APPLY WHETHER OR NOT ANY SUCH LIABILITY OR CLAIM IS IN
ANY WAY OR TO ANY EXTENT CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT
ACT OR OMISSION OF ANY KIND BY ANY LENDER PARTY, provided only that no
Lender Party shall be entitled to indemnification for that portion, if
any, of any liability or claim which is proximately caused by its own
individual gross negligence or willful misconduct, as determined in a
final judgment.
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(b) Extension of Maturity. If the maturity of any TRB Letter
of Credit is extended by its terms or by Law or governmental action, if
any extension of the maturity or time for presentation of drafts or any
other modification of the terms of any TRB Letter of Credit is made at
the request of any Restricted Person, or if the amount of any TRB
Letter of Credit is increased at the request of any Restricted Person,
this Agreement shall be binding upon all Restricted Persons with
respect to such TRB Letter of Credit as so extended, increased or
otherwise modified, with respect to drafts and property covered
thereby, and with respect to any action taken by US LC Issuer, US LC
Issuer's correspondents, or any Lender Party in accordance with such
extension, increase or other modification.
(c) Transferees of Letters of Credit. If any TRB Letter of
Credit provides that it is transferable, US LC Issuer shall have no
duty to determine the proper identity of anyone appearing as transferee
of such TRB Letter of Credit, nor shall US LC Issuer be charged with
responsibility of any nature or character for the validity or
correctness of any transfer or successive transfers, and payment by US
LC Issuer to any purported transferee or transferees as determined by
US LC Issuer is hereby authorized and approved, and US Borrower
releases each Lender Party from, and agrees to hold each Lender Party
harmless and indemnified against, any liability or claim in connection
with or arising out of the foregoing, WHICH INDEMNITY SHALL APPLY
WHETHER OR NOT ANY SUCH LIABILITY OR CLAIM IS IN ANY WAY OR TO ANY
EXTENT CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF
ANY KIND BY ANY LENDER PARTY, provided only that no Lender Party shall
be entitled to indemnification for that portion, if any, of any
liability or claim which is proximately caused by its own individual
gross negligence or willful misconduct, as determined in a final
judgment.
Section 2.6A. TRB LC Collateral.
(a) TRB US LC Obligations in Excess of Tranche B Maximum
Credit Amount. If, after the making of all mandatory prepayments
required under Section 1.6(c), the TRB US LC Obligations outstanding
under the US Agreement will exceed the Tranche B Maximum Credit Amount,
then in addition to prepayment of the entire principal balance of the
Tranche B Loans, US Borrower will immediately pay to US Agent an amount
equal to such excess. US Agent will hold such amount as TRB LC
Collateral to secure the remaining TRB US LC Obligations outstanding
under the US Agreement and the other US Obligations, and such TRB LC
Collateral may be applied from time to time to any TRB Matured US LC
Obligations or other US Obligations which are due and payable. Neither
this subsection nor the following subsections (b) and (c) shall,
however, limit or impair any rights which US Agent or US LC Issuer may
have under any other document or agreement relating to any TRB Letter
of Credit, TRB LC Collateral or TRB US LC Obligation, including,
subject to the last sentence of Section 2.2A, any LC Application, or
any rights which any Lender Party may have to otherwise apply any
payments by US Borrower and any TRB LC Collateral under Section 3.1.
12
(b) Acceleration of US LC Obligations. If the US Obligations
or any part thereof become immediately due and payable pursuant to
Section 8.1 then, unless Tranche B Required Lenders otherwise
specifically elect to the contrary (which election may thereafter be
retracted by Tranche B Required Lenders at any time), all TRB US LC
Obligations shall become immediately due and payable without regard to
whether or not actual drawings or payments on the TRB Letters of Credit
have occurred, and US Borrower shall be obligated to immediately pay to
US Agent an amount equal to the aggregate TRB US LC Obligations which
are then outstanding to be held as TRB LC Collateral.
(c) Tranche B Conversion Date. If TRB US LC Obligations are
outstanding on the Tranche B Conversion Date, US Borrower will
immediately pay to US Agent an amount equal to such outstanding TRB US
LC Obligations. US Agent will hold such amount as TRB LC Collateral to
secure the remaining TRB US LC Obligations outstanding under the US
Agreement and the other US Obligations, and such TRB LC Collateral may
be applied from time to time to any TRB Matured US LC Obligations or
other US Obligations which are due and payable.
(d) Investment of TRB LC Collateral. Pending application
thereof, all TRB LC Collateral shall be invested by US Agent (i) at any
time when no Default or Event of Default has occurred that is
continuing, in such Cash Equivalents as US Borrower 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 US
LC Issuer may choose in its sole discretion. All interest on (and other
proceeds of) such Investments shall be reinvested or applied to TRB
Matured US LC Obligations or other US Obligations which are due and
payable; provided that so long as no Default or Event of Default has
occurred that is continuing, such interest on or other earnings in
respect of such Investments shall be promptly paid to US Borrower upon
its written request to US Agent. When all US Obligations have been
satisfied in full, including all TRB US LC Obligations, all TRB Letters
of Credit have expired or been terminated, and all of US Borrower's
reimbursement obligations in connection therewith have been satisfied
in full, US Agent shall release to US Borrower any remaining TRB LC
Collateral.
(e) Grant of Security Interest. US Borrower hereby assigns and
grants to US Agent a continuing security interest in all TRB LC
Collateral paid by it to US Agent, all Investments purchased with such
TRB LC Collateral, and all proceeds thereof to secure its TRB Matured
US LC Obligations and the other US Obligations hereunder, each US Note,
and the other US Loan Documents. US Borrower further agrees that US
Agent shall have all of the rights and remedies of a secured party
under the Uniform Commercial Code as adopted in the State of Texas 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 US Borrower is required to provide TRB LC Collateral for
any reason and fails to do so on the day when required, US Agent may
without notice to US Borrower or any other Restricted Person provide
such TRB LC Collateral (whether
13
by transfers from other accounts maintained with US Agent, or
otherwise) using any available funds of US Borrower or any other Person
also liable to make such payments."
Section 2.6. Tax Shelter Representation. Article V of the Original
Agreement is hereby amended by adding thereto a new Section 5.14 immediately
after Section 5.13 thereof to read as follows:
"Section 5.14. Tax Shelter Regulations. US Borrower does not
intend to treat the US Loans and/or Letters of Credit issued hereunder
and the transactions financed thereby as being a "reportable
transaction" (within the meaning of Treasury Regulation Section
1.6011-4). In the event US Borrower determines to take any action
inconsistent with such intention, it will promptly notify US Agent
thereof. If US Borrower so notifies US Agent, US Borrower acknowledges
that one or more of the US Lenders may treat its US Loans and/or
Letters of Credit issued hereunder as part of a transaction that is
subject to Treasury Regulation Section 301.6112-1, and such US Lender
or US Lenders, as applicable, will maintain the lists and other records
required by such Treasury Regulation."
Section 2.7. Tax Shelter Covenant. Section 6.4 of the Original
Agreement is hereby amended by adding thereto a new subsection (d) immediately
after subsection (c) thereof to read as follows:
"(d) Promptly after US Borrower has notified US Agent of any
intention by US Borrower to treat the US Loans and/or Letters of Credit
issued hereunder and the transaction financed thereby as being a
"reportable transaction" (within the meaning of Treasury Regulation
Section 1.6011-4), US Borrower shall deliver to US Agent a duly
completed copy of IRS Form 8886 or any successor form."
Section 2.8 Indebtedness. Subsections (m) and (o) of Section 7.1 of the
Original Agreement are hereby amended in their entirety to read as follows:
"(m) (i) (A) Indebtedness in an aggregate principal amount not
to exceed US $3,600,000,000 owed by Devon Financing ULC, and (B) other
Indebtedness of Devon Financing ULC with respect to guaranties of
Indebtedness of US Borrower, to the extent US Borrower is in compliance
with the terms of Section 7.8 at the time such guaranties are executed
and delivered, provided that in each case, the Devon Financing ULC
Guaranties remain valid, binding and enforceable obligations of Devon
Financing ULC or, if the Devon Financing ULC Guaranties have been
terminated, replacement guaranty agreements on the same terms are
executed by Devon Financing ULC and delivered to Canadian Agent and US
Agent, respectively, pursuant to the Canadian Agreement and the US
Agreement (along with documents similar to those specified in Section
4.1(d)(i), (e) and (g) with respect to Devon Financing ULC), and
(ii) with respect to any Restricted Subsidiary that assumes
all or any portion of the Indebtedness described in the preceding
subclause (i)(A) or otherwise becomes liable for
14
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
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."
"(o) miscellaneous items of Indebtedness of all Restricted
Persons (other than US Borrower) not otherwise permitted in subsections
(a) through (n) which do not in the aggregate exceed US $500,000,000 in
principal amount at any one time outstanding."
Section 2.9. 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 US LC Issuer resigns as a US LC Issuer, it shall retain all the
rights and obligations of a US LC Issuer hereunder with respect to all
Letters of Credit issued by it outstanding as of the effective date of
its resignation as a US LC Issuer and all US LC Obligations with
respect thereto (including the right to require the Tranche A Lenders
and the Tranche B Lenders, as applicable, to make US Base Rate Loans or
fund participations in unreimbursed amounts pursuant to Section 2.3(b)
or Section 2.3A(b))."
Section 2.10. Confidentiality. Section 10.7 of the Original Agreement
is hereby amended to add the following sentence at the end thereof:
"Notwithstanding anything herein to the contrary, the term
"information" shall not include, and the US Agent and each US Lender
may disclose without limitation of any kind, any information with
respect to the "tax treatment" and "tax structure" (in each case,
within the meaning of Treasury Regulation Section 1.6011-4) of the
transactions financed hereby and all materials of any kind (including
opinions or other tax analyses) that are provided to the US Agent or
such US Lender relating to such tax treatment and tax structure, other
than any information for which nondisclosure is reasonably necessary in
order to comply with applicable securities laws; provided that with
respect to any document or similar item that in either case contains
information concerning the tax treatment or tax structure of the
transaction as well as other information, this sentence shall only
apply to such portions of the document or similar item that relate to
the tax treatment or tax structure of the US Loans, Letters of Credit
issued hereunder and transactions contemplated hereby."
Section 2.11. Existing Ocean Letters of Credit. The Original Agreement
is hereby amended to add a new Section 10.21 thereto immediately following
Section 10.20 thereof to read as follows:
15
"Section 10.21. Existing Ocean Letters of Credit. All
obligations of Ocean and any Subsidiary of Ocean under the Ocean Credit
Agreement and any LC Application in respect of the Existing Ocean
Letters of Credit (including, but not limited to, all obligations to
reimburse ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank for drawings thereunder) (a) are hereby
affirmed and continued in full force and effect, subject to the last
sentence of Section 2.2 and the last sentence of Section 2.2A, under
the terms of this Agreement and the other US Loan Documents, (b) are
hereby assumed by US Borrower, and (c) shall constitute US LC
Obligations hereunder; and Ocean and its Subsidiaries are hereby
released from such obligations. The Existing Ocean Letters of Credit
shall be deemed to have been issued by JPMorgan Chase Bank (as US LC
Issuer) under, and the US 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 2.2 and the last
sentence of Section 2.2A); and the other US Loan Documents, provided
that Letter of Credit No. 913560 has been issued by Bank of America and
shall be deemed to have been issued by Bank of America (as US LC
Issuer) under this Agreement."
Section 2.12. Authorized Officers. The Original Agreement is hereby
amended to replace each reference to "the Senior Vice President - Finance" with
"the Senior Vice President - Finance, the Senior Vice President - Corporate
Finance and Development, the Vice President - Corporate Finance".
Section 2.13. Existing Ocean Letters of Credit Schedule. The Original
Agreement is hereby amended to add a new Schedule 4 thereto immediately
following Schedule 3 thereof to read as set forth in Schedule 1 hereof.
Section 2.14. Unrestricted Subsidiaries. Attachment 1 to Annex I to the
Original Agreement is hereby amended by adding the Subsidiaries set forth in
Schedule 2 hereto.
Section 2.15. Lenders Schedule. Annex II to this Amendment is hereby
substituted for Annex II to the Original Agreement.
Section 2.16. LC Application. Exhibit G to the Original Agreement is
hereby amended in its entirety by substituting therefor the LC Applications
attached hereto as Annex I.
Section 2.17. Waiver of Notice. Each Tranche B Lender hereby waives the
requirement under Section 1.1(c) of the Original Agreement that a Request for
Offer of Extension be made by a specific date prior to the current Tranche B
Conversion Date of June 6, 2003 and further agrees that the date for acceptance
by US Borrower of the Offer of Extension made hereby shall be extended to June
5, 2003, notwithstanding the terms of Section 1.1(c)(ii) of the Original
Agreement.
16
ARTICLE III.
Conditions of Effectiveness
Section 3.1. Effective Date. This Amendment shall become effective on
the date (the "Effective Date") on which US Borrower has executed and delivered
this Amendment to US Agent (provided that US Borrower shall have executed this
Amendment on or before June 5, 2003) and the following additional conditions are
satisfied:
(a) US Agent shall have received all of the following, at US Agent's
office, in form, substance and date satisfactory to US Agent:
(i) this Amendment, duly executed by US Borrower, US Agent and
US Required Lenders (including all Tranche B Lenders), other than
Exiting Tranche B Lenders.
(ii) a Tranche B Note and a Competitive Bid Note duly executed
by US Borrower payable to each New Tranche B Lender and a Tranche B
Note to each other Tranche B Lender whose Tranche B Percentage Share of
the Tranche B Maximum Credit Amount is changing after giving effect to
the provisions of this Amendment.
(iii) a certificate of the Senior Vice President - Finance,
the Senior Vice President - Corporate Finance and Development or the
Vice President - Corporate Finance of US 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.
(iv) a Consent and Agreement, duly executed by US Guarantor.
(b) US Borrower shall have paid on or before such effective date all
fees and reimbursements to be paid to US Agent and US Lenders pursuant to any US
Loan Documents, or otherwise due US Agent or US Lenders and including fees and
disbursements of US Agent's attorneys.
(c) All commitments under the Ocean Credit Agreement shall have been
contemporaneously terminated.
Section 3.2. Special Effective Date Provisions.
(a) From and after the Effective Date, (i) each Exiting Tranche B
Lender shall cease to be a Tranche B Lender under the US Agreement, (ii) no
Exiting Tranche B Lender shall have any obligations or liabilities under the US
Agreement as a Tranche B Lender with respect to the period from and after the
Effective Date, and, without limiting the foregoing, no Exiting Tranche B Lender
shall have any commitment to make Tranche B Loans under the US
17
Agreement and (iii) no Exiting Tranche B Lender shall have any rights as a
Tranche B Lender under the US Agreement or any other US Loan Document (other
than rights under the US Agreement expressly stated to survive the termination
of the US Agreement and the repayment of amounts outstanding thereunder). US
Borrower and Tranche B Lenders hereby authorize US Agent to enter into
appropriate documentation with the Exiting Tranche B Lenders confirming the
foregoing provisions of this subsection.
(b) From and after the Effective Date, each New Tranche B Lender (i)
agrees that it shall be bound by the provisions of the US Agreement as a US
Lender thereunder and shall have the obligations of a US Lender thereunder, (ii)
confirms that it has received a copy of the US 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 Tranche B Lender on the basis of which it has
made such analysis and decision independently and without reliance on US Agent
or any other US Lender, (iii) appoints and authorizes US Agent to take such
action as agent on its behalf and to exercise such powers as it deems necessary
under the US Agreement and any other US Loan Document as are delegated to US
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 US Agent or any other US 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 US Loan Documents, and
(2) it will perform in accordance with their terms all of the obligations which
by the terms of the US Loan Documents are required to be performed by it as a US
Lender.
(c) From and after the Effective Date, JPMorgan Chase Bank agrees that
it shall be bound by the provisions of the US Agreement as a US LC Issuer
thereunder and shall have the obligations of a US LC Issuer thereunder.
(d) Tranche B Lenders hereby authorize US Agent and US Borrower (i) in
the event any Tranche B Loans are outstanding on the Effective Date, to request
Tranche B Loans from the Tranche B Lenders (other than the Exiting Tranche B
Lenders), to make prepayments of Tranche B Loans and (ii) to re-allocate
commitments under the US Agreement among Tranche B Lenders in order to ensure
that, upon the effectiveness of this Amendment, the Tranche B Loans (if any) and
commitment of Tranche B Lenders shall be outstanding on a ratable basis in
accordance with their respective Tranche B Percentage Shares, and no such
borrowing, prepayment or re-allocation shall violate any provisions of the US
Agreement. Tranche B Lenders hereby waive any requirements for minimum amounts
of prepayments of Tranche B Loans, ratable re-allocations of the Tranche B
Percentage Shares of Tranche B Lenders under the US Agreement and ratable
payments on account of the principal or interest of any Tranche B Loan under the
US Agreement to the extent such prepayment, re-allocation or payments are
required pursuant to this subsection.
Section 3.3. Offer to Extend. The Offer to Extend set forth herein
shall be withdrawn and this Amendment shall be null and void if it is not
executed and delivered by US Borrower on or before June 5, 2003.
18
ARTICLE IV.
Representations and Warranties
Section 4.1. Representations and Warranties of US Borrower. In order to
induce the US Lenders to enter into this Amendment, US Borrower represents and
warrants to each US 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 US Agreement.
(b) US 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 US Agreement. US 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 US Borrower
hereunder.
(c) The execution and delivery by US Borrower of this Amendment, the
performance by US 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 US Borrower, or
(C) any agreement, judgment, license, order or permit applicable to or binding
upon US 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 US 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 US 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 US
Agreement will be a legal and binding obligation of US 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, 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 US Lender. Since such dates no material
19
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 is hereby ratified and confirmed in all respects. The US Loan
Documents, as they may be amended or affected by this Amendment, are hereby
ratified and confirmed in all respects. Any reference to the US 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 US Lenders under the US Agreement or any other US Loan
Document nor constitute a waiver of any provision of the US Agreement or any
other US Loan Document.
Section 5.2. Survival of Agreements. All representations, warranties,
covenants and agreements of US Borrower herein shall survive the execution and
delivery of this Amendment and the performance hereof, and shall further survive
until all of the US Obligations are paid in full. All statements and agreements
contained in any certificate or instrument delivered by US Borrower or any
Restricted Person hereunder or under the US Agreement to any US Lender shall be
deemed to constitute representations and warranties by, and/or agreements and
covenants of, US Borrower under this Amendment and under the US Agreement.
Section 5.3. US Loan Documents. This Amendment is a US Loan Document,
and all provisions in the US Agreement pertaining to US Loan Documents apply
hereto.
Section 5.4. Governing Law. This Amendment shall be governed by and
construed in accordance the laws of the State of Texas and any applicable laws
of the United States of America 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 US 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.
20
IN WITNESS WHEREOF, this Amendment is executed as of the date first
above written.
DEVON ENERGY CORPORATION
US Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President -
Corporate Finance and Development
BANK OF AMERICA, N.A.
Administrative Agent, US LC Issuer,
Tranche A Lender and Tranche B Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Principal
JPMORGAN CHASE BANK
US LC Issuer, Tranche A Lender and
Tranche B Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
ABN AMRO BANK, N.V.
Tranche B Lender
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------
Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
BANK OF MONTREAL
Tranche A Lender and Tranche B Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
BANK OF OKLAHOMA, N.A.
Tranche B Lender
By: /s/ T. ▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------------
Name: T. ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
BANK ONE, NA (MAIN OFFICE - CHICAGO)
Tranche A Lender and Tranche B Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
BARCLAYS BANK PLC
Tranche B Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director
Loan Transaction Management
BNP PARIBAS
Tranche B Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
CITIBANK, N.A.
Tranche A Lender and Tranche B Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Attorney-In-Fact
CREDIT LYONNAIS NEW YORK BRANCH
Tranche B Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON
Tranche B Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Associate
DEN NORSKE BANK ASA
Tranche B Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK AG NEW YORK BRANCH
Tranche A Lender and Tranche B Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
ING CAPITAL, LLC
Tranche B Lender
By: /s/ ▇▇▇▇▇▇ Scherpenhuijsen Rom
-------------------------------------------------
Name: ▇▇▇▇▇▇ Scherpenhuijsen Rom
Title: Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA
Tranche B Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK
Tranche B Lender
By: /s/ Jaap L. Tonckens
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Name: Jaap L. Tonckens
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank
ROYAL BANK OF CANADA
Tranche A Lender and Tranche B Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Manager
SOCIETE GENERALE
Tranche B Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
SOUTHWEST BANK OF TEXAS, N.A.
Tranche B Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President, Energy Lending
THE BANK OF NEW YORK
Tranche A Lender and Tranche B Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA
Tranche B Lender
By: /s/ ▇. ▇▇▇▇
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Name: ▇. ▇▇▇▇
Title: Senior Manager
THE BANK OF TOKYO - MITSUBISHI, LTD.
HOUSTON AGENCY
Tranche B Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: VP & Manager
By: /s/ ▇▇▇ Fort
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Name: ▇▇▇ Fort
Title: Vice President
UBS AG, CAYMAN ISLANDS BRANCH
Tranche B Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇ Saint
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Name: ▇▇▇▇▇▇▇ Saint
Title: Associate Director
UMB BANK, n.a.
Tranche A Lender and Tranche B Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Community Bank President
WACHOVIA BANK, NATIONAL
ASSOCIATION
Tranche A Lender and Tranche B Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
▇▇▇▇▇ FARGO BANK TEXAS, N.A.
Tranche B Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
First Amendment (US)
CONSENT AND AGREEMENT
Devon Financing Corporation, U.L.C., a Nova Scotia unlimited liability
company, hereby (i) consents to the provisions of this Amendment and the
transactions contemplated herein, (ii) ratifies and confirms the Guaranty dated
as of June 7, 2002 (the "DFC Guaranty") made by it for the benefit of US Agent
and Lenders executed pursuant to the US Agreement and the other US 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 DFC Guaranty and such other US Loan Documents
shall remain in full force and effect.
DEVON FINANCING CORPORATION, U.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
SCHEDULE 1
TO
FIRST AMENDMENT
SCHEDULE 4
EXISTING OCEAN LETTERS OF CREDIT
TRB LETTERS OF CREDIT
None.
TRA LETTERS OF CREDIT
▇▇▇▇▇ ▇▇▇ OPERATING INC. (F/K/A OCEAN ENERGY INC.)
ACTIVE/OUTSTANDING LETTERS OF CREDIT
AS OF 5/15/2003
ISSUE ISSUING EXPIRATION
LC/ NO. DATE BANK BENEFICIARY AMOUNT DATE
--------------- --------- ------------------- ----------------------------------- ---------------- -----------------
P-259686 05/14/91 Chase Manhattan Insurance Co. of North America 25,000.00 01/30/04
(CIGNA/ACE)
P-753484 02/18/94 Chase Manhattan American Home Assurance, et al. 960,000.00 01/30/04
D-299353 03/29/00 Chase Texas National Union Fire Insurance 600,000.00 03/21/04
D-213486 05/09/01 Chase Texas National Union Fire Insurance 350,000.00 05/08/03
913560 08/10/93 Bank of America Hambros Trust Company (Jersey) 15,998,416.43 08/11/03
(formerly Nations) Ltd.
D-287153 05/03/99 Chase Texas Sociedade Nacional de 5,625,000.00 07/15/03
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇-▇▇▇▇▇▇ 08/14/01 Chase Texas Agencia Nacional do Petroleo 500,000.00 03/30/05
P-235458 03/10/03 ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ NY ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank London, 105,000,000.00 03/11/04
England
TOTAL $ 129,058,416.43