EXHIBIT 10.2
AMENDED AND RESTATED CANADIAN CREDIT AGREEMENT
NORTHSTAR ENERGY CORPORATION
and
DEVON CANADA CORPORATION
as Canadian Borrowers
BANK OF AMERICA, N.A., acting through its Canadian Branch
as Administrative Agent
and CERTAIN FINANCIAL INSTITUTIONS
as Lenders
US $275,000,000
(subject to re-allocation up to US $375,000,000)
June 7, 2002
TABLE OF CONTENTS
Page
ARTICLE I - Canadian Advances.................................................................................... 1
Section 1.1. Commitments to Make Advances; Canadian Notes.......................................... 1
Section 1.2. Requests for New Canadian Advances.................................................... 3
Section 1.3. Continuations and Conversions of Existing Canadian Advances........................... 4
Section 1.4. Repayments............................................................................ 6
Section 1.5. Interest Rates and Fees............................................................... 8
Section 1.6. Extension of Canadian Conversion Date................................................. 10
Section 1.7. Conversion to Canadian Term Loan...................................................... 11
Section 1.8. Non-Accepting Lender.................................................................. 11
Section 1.9. Competitive Bid Loans................................................................. 12
Section 1.10. Use of Proceeds....................................................................... 15
Section 1.11. Refinancings of Canadian Swing Loans.................................................. 15
Section 1.12. Re-allocation of Tranche B Maximum Credit Amount and Canadian Maximum Credit Amount... 16
ARTICLE II - Bankers' Acceptances and Letters of Credit.......................................................... 18
Section 2.1. Creation of Bankers' Acceptances...................................................... 18
Section 2.2. Terms of Acceptance by the Canadian Resident Lenders.................................. 18
Section 2.3. General Procedures for Bankers' Acceptances........................................... 21
Section 2.4. Execution of Bankers' Acceptances..................................................... 22
Section 2.5. Escrowed Funds........................................................................ 23
Section 2.6. Letters of Credit..................................................................... 23
Section 2.7. Requesting Letters of Credit.......................................................... 24
Section 2.8. Reimbursement and Participations...................................................... 24
Section 2.9. Letter of Credit Fees................................................................. 25
Section 2.10. No Duty to Inquire.................................................................... 25
Section 2.11. LC Collateral......................................................................... 26
ARTICLE III - Payments to Lenders................................................................................ 28
Section 3.1. General Procedures.................................................................... 28
Section 3.2. Change in Law; Gross Up; Increased Cost and Reduced Return............................ 29
Section 3.3. Limitation on Types of Canadian Loans................................................. 32
Section 3.4. Illegality............................................................................ 32
Section 3.5. Treatment of Affected Loans........................................................... 32
Section 3.6. Compensation.......................................................................... 33
Section 3.7. Change of Applicable Lending Office................................................... 34
Section 3.8. Replacement of Lenders................................................................ 34
Section 3.9. Other Taxes........................................................................... 34
Section 3.10. Currency Conversion and Currency Indemnity............................................ 35
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ARTICLE IV - Conditions Precedent to Advances.................................................................... 36
Section 4.1. Documents to be Delivered............................................................. 36
Section 4.2. Additional Conditions Precedent to First Canadian Loan or First Letter of Credit...... 37
Section 4.3. Additional Conditions Precedent to all Canadian Advances and Letters of Credit........ 38
ARTICLE V - Representations and Warranties....................................................................... 38
Section 5.1. No Default............................................................................ 38
Section 5.2. Organization and Good Standing........................................................ 38
Section 5.3. Authorization......................................................................... 39
Section 5.4. No Conflicts or Consents.............................................................. 39
Section 5.5. Enforceable Obligations............................................................... 39
Section 5.6. Full Disclosure....................................................................... 39
Section 5.7. Litigation............................................................................ 39
Section 5.8. Environmental and Other Laws.......................................................... 40
Section 5.9. Canadian Borrowers' Subsidiaries...................................................... 40
Section 5.10. Title to Properties; Licenses......................................................... 40
Section 5.11. Solvency.............................................................................. 41
ARTICLE VI - Affirmative Covenants of Canadian Borrowers......................................................... 41
Section 6.1. Payment and Performance............................................................... 41
Section 6.2. Books, Financial Statements and Reports............................................... 41
Section 6.3. Other Information and Inspections..................................................... 42
Section 6.4. Notice of Material Events............................................................. 43
Section 6.5. Maintenance of Properties............................................................. 43
Section 6.6. Maintenance of Existence and Qualifications........................................... 43
Section 6.7. Payment of Trade Liabilities, Taxes, etc.............................................. 44
Section 6.8. Insurance............................................................................. 44
Section 6.9. Performance on Canadian Borrowers' Behalf............................................. 44
Section 6.10. Interest.............................................................................. 44
Section 6.11. Compliance with Law................................................................... 44
Section 6.12. Environmental Matters................................................................. 44
Section 6.13. Bank Accounts; Offset................................................................. 45
ARTICLE VII - Negative Covenants of Canadian Borrowers........................................................... 45
Section 7.1. Indebtedness.......................................................................... 45
Section 7.2. Limitation on Liens................................................................... 47
Section 7.3. Limitation on Mergers................................................................. 47
Section 7.4. Limitation on Issuance of Securities by Subsidiaries of US Borrower;
Ownership of certain Restricted Subsidiaries by US Borrower........................... 47
Section 7.5. Transactions with Affiliates.......................................................... 48
Section 7.6. Funded Debt to Total Capitalization................................................... 48
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ARTICLE VIII - Events of Default and Remedies.................................................................... 48
Section 8.1. Events of Default..................................................................... 48
Section 8.2. Remedies.............................................................................. 51
ARTICLE IX - Canadian Agent...................................................................................... 51
Section 9.1. Appointment, Powers, and Immunities................................................... 51
Section 9.2. Reliance by Canadian Agent............................................................ 52
Section 9.3. Defaults.............................................................................. 52
Section 9.4. Rights as Lender...................................................................... 53
Section 9.5. Indemnification....................................................................... 53
Section 9.6. Non-Reliance on Canadian Agent and Other Lenders...................................... 53
Section 9.7. Administrative Agent in its Individual Capacity....................................... 54
Section 9.8. Sharing of Set-Offs and Other Payments................................................ 54
Section 9.9. Investments........................................................................... 55
Section 9.10. Benefit of Article IX................................................................. 55
Section 9.11. Resignation........................................................................... 55
Section 9.12. Lenders to Remain Pro Rata............................................................ 55
Section 9.13. Other Agents.......................................................................... 56
ARTICLE X - Miscellaneous........................................................................................ 56
Section 10.1. Waivers and Amendments; Acknowledgments............................................... 56
Section 10.2. Survival of Agreements; Cumulative Nature............................................. 58
Section 10.3. Notices............................................................................... 58
Section 10.4. Payment of Expenses; Indemnity........................................................ 59
Section 10.5. Parties in Interest................................................................... 60
Section 10.6. Assignments and Participations........................................................ 60
Section 10.7. Confidentiality....................................................................... 64
Section 10.8. Governing Law; Submission to Process.................................................. 64
Section 10.9. Waiver of Judgment Interest Act (Alberta)............................................. 64
Section 10.10. Deemed Reinvestment Not Applicable.................................................... 64
Section 10.11. Limitation on Interest................................................................ 64
Section 10.12. Termination; Limited Survival......................................................... 65
Section 10.13. Severability.......................................................................... 66
Section 10.14. Counterparts; Fax..................................................................... 66
Section 10.15. Waiver of Jury Trial, Punitive Damages, etc........................................... 66
Section 10.16. Defined Terms......................................................................... 67
Section 10.17. Annex I, Exhibits and Schedules; Additional Definitions............................... 67
Section 10.18. Amendment of Defined Instruments...................................................... 67
Section 10.19. References and Titles................................................................. 67
Section 10.20. Calculations and Determinations....................................................... 67
Section 10.21. Construction of Indemnities and Releases.............................................. 68
Section 10.22. Separate Obligations.................................................................. 68
Section 10.23 Amendment and Restatement of Existing Canadian Agreement.............................. 68
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Schedules and Exhibits:
Annex I - Defined Terms
Annex II - Lenders Schedule
Schedule 1 - Disclosure Schedule
Schedule 2 - Surety Bonds & Letters of Credit
Schedule 3 - Existing Indebtedness and Funding Commitments
Exhibit A-1 - Promissory Note
Exhibit A-2 - Canadian Swing Promissory Note
Exhibit B - Borrowing Notice
Exhibit C - Continuation/Conversion Notice
Exhibit D - Certificate Accompanying Financial Statements
Exhibit E-1 - Opinion of Counsel for Restricted Persons
Exhibit E-2 - Opinion of Counsel for Devon Financing ULC
Exhibit F - Assignment and Assumption Agreement
Exhibit G - Re-allocation Notice
Exhibit H - [Reserved]
Exhibit I - Competitive Bid Request
Exhibit J - Invitation to Bid
Exhibit K - Competitive Bid
Exhibit L - Competitive Bid Accept/Reject Letter
Exhibit M - Competitive Bid Note
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AMENDED AND RESTATED CANADIAN CREDIT AGREEMENT
THIS AMENDED AND RESTATED CANADIAN CREDIT AGREEMENT (this "Agreement") is
made as of June 7, 2002, 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 Lenders party to, and as defined under, the
Existing Canadian Agreement (as defined below).
Canadian Borrowers, Canadian Agent and Canadian Lenders entered into the
Canadian Credit Agreement dated as of August 29, 2000 (as amended, supplemented
or otherwise modified prior to the Closing Date as defined herein, the "Existing
Canadian Agreement"), for the purpose and consideration therein expressed,
wherein Canadian Lenders became obligated to make loans to Canadian Borrowers as
therein provided.
Canadian Borrowers have requested that Canadian Lenders extend the
effectiveness of the Canadian Revolving Period as set forth in the Existing
Canadian Agreement and make certain other amendments and modifications thereto,
all on the terms and conditions provided herein.
Accordingly, 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,
Canadian Borrowers, Canadian Agent and Canadian Lenders hereby agree as follows:
ARTICLE I - Canadian Advances
Section 1.1. Commitments to Make Advances; Canadian Notes.
(a) Canadian Loans. Subject to the terms and conditions hereof, each
Lender agrees to extend credit to each Canadian Borrower by advancing funds to
the applicable Canadian Borrower specified in a Borrowing Notice (herein called
such Lender's "Canadian Revolving Loans" and, with reference to Canadian
Resident Lenders only, accepting or purchasing drafts of Bankers' Acceptances
issued under this Agreement by the applicable Canadian Borrower specified in a
Borrowing Notice herein called such Lender's "Bankers' Acceptances"; each
Lender's Canadian Revolving Loans, Canadian Term Loans, and Bankers' Acceptances
are herein collectively called such Lender's "Canadian Advances") upon the
applicable Canadian Borrower's request from time to time during the Canadian
Revolving Period, provided that (i) subject to Sections 2.1, 2.2., 3.3, 3.4 and
3.5, all Lenders are requested to make Canadian Advances of the same Type in
accordance with their respective Percentage Shares and as part of the same
Borrowing, (ii) such Lender's Percentage Share of the Canadian Facility Usage
shall never exceed such Lender's Percentage Share of the Canadian Maximum Credit
Amount, and (iii) the aggregate amount of the Canadian Facility Usage and the
Canadian Swing Loans outstanding shall never
exceed the Canadian Maximum Credit Amount. Subject to the terms and conditions
hereof, each Lender also agrees to extend credit to each Canadian Borrower by
participating in draws under Letters of Credit in accordance with Sections 2.6,
2.7 and 2.8 hereof. The aggregate amount of all Canadian Loans in any Borrowing
must be an integral multiple of $100,000 in the Applicable Currency which equals
or exceeds $1,000,000 in the Applicable Currency or must equal the unadvanced
portion of the Canadian Maximum Credit Amount. Each Canadian Borrower may have
no more than ten Borrowings of Eurodollar Loans outstanding at any time. The
obligation of each Canadian Borrower to repay to each Lender the aggregate
amount of all Canadian Loans (excluding Canadian Swing Loans) made by such
Lender to such Borrower, together with interest accruing in connection
therewith, shall be evidenced by a separate promissory note (herein called such
Lender's "Canadian Note") made, by each Canadian Borrower payable to the order
of such Lender in the form of Exhibit A-1 with appropriate insertions. The
amount of principal owing on any Lender's Canadian Note at any given time shall
be the aggregate amount of all Canadian Loans theretofore made by such Lender
minus all payments of principal theretofore received by such Lender on such
Canadian Note. Interest on each Canadian Note shall accrue and be due and
payable as provided herein and therein. Each Lender's Canadian Note shall be due
and payable as provided herein and therein and shall be due and payable in full
on the Canadian Facility Maturity Date.
(b) Swing Loans. Subject to the terms and conditions hereof, Canadian
Swing Lender agrees to make loans to each Canadian Borrower (herein called
"Canadian Swing Loans") upon the applicable Canadian Borrower's request from
time to time during the Canadian Revolving Period, provided that (i) the
Canadian Facility Usage shall never exceed the Canadian Maximum Credit Amount,
and (ii) the aggregate amount of Canadian Swing Loans outstanding shall never
exceed the Canadian Swing Sublimit. The aggregate amount of all Canadian Swing
Loans in any Borrowing must be an integral multiple of C $100,000 which equals
or exceeds C $1,000,000 or must equal the unadvanced portion of the Canadian
Maximum Credit Amount. The obligation of each Canadian Borrower to repay to
Canadian Swing Lender the aggregate amount of all Canadian Swing Loans made by
Canadian Swing Lender, together with interest accruing in connection therewith,
shall be evidenced by a separate promissory note (herein called each Canadian
Borrower's "Canadian Swing Note") made by each Canadian Borrower payable to the
order of Canadian Swing Lender in the form of Exhibit A-2 with appropriate
insertions. The amount of principal owing on each Canadian Swing Note at any
given time shall be the aggregate amount of all Canadian Swing Loans theretofore
made by Canadian Swing Lender minus all payments of principal theretofore
received by Canadian Swing Lender on such Canadian Swing Note (including as a
result of any refinancing pursuant to Section 1.11). Interest on each Canadian
Swing Note shall accrue and be due and payable as provided herein and therein.
Each Canadian Swing Note shall be due and payable as provided herein and
therein, and shall be due and payable in full on the Canadian Conversion Date.
Subject to the terms and conditions hereof, each Canadian Borrower may borrow,
repay, and reborrow Canadian Swing Loans under the Canadian Agreement during the
Canadian Revolving Period. The Canadian Swing Lender shall be a Canadian
Resident Lender.
(c) Overterm Canadian Loans are Separate Loans. Any Overterm Canadian
Loans shall be separate and distinct loans with their own independent repayment
terms and conditions as
2
set forth in this Canadian Agreement. Such loans shall be separate and distinct
from each other and from any Canadian Revolving Loans and Canadian Term Loans
into which such Canadian Revolving Loans may be converted. The parties hereto
further acknowledge and agree that any Canadian Term Loans established upon the
conversion of the Canadian Revolving Loans shall be a continuation of any such
Canadian Revolving Loans and shall not be separate and distinct from any such
Canadian Revolving Loans.
Section 1.2. Requests for New Canadian Advances. The applicable Canadian
Borrower must give to Canadian Agent written notice (or telephonic notice
promptly confirmed in writing) of any requested Borrowing of new Canadian Loans
and any requested Borrowing by way of new Bankers' Acceptances. Each such notice
constitutes a "Borrowing Notice" hereunder and must:
(a) specify (i) the aggregate amount of any such Borrowing of new Canadian
Base Rate Loans and the date on which such Canadian Base Rate Loans are to be
advanced, (ii) the aggregate amount of any such Borrowing of Canadian Prime Rate
Loans and the date on which such Canadian Prime Rate Loans are to be advanced,
(iii) the aggregate amount of any such Borrowing of new US Dollar Eurodollar
Loans, the date on which such US Dollar Eurodollar Loans are to be advanced
(which shall be the first day of the Eurodollar Interest Period which is to
apply thereto), and the length of the applicable Eurodollar Interest Period,
(iv) the aggregate amount of any such Borrowing of new Canadian Dollar
Eurodollar Loans, the date on which such Canadian Dollar Eurodollar Loans are to
be advanced (which shall be the first day of the Eurodollar Interest Period
which is to apply thereto), and the length of the applicable Eurodollar Interest
Period, (v) the aggregate amount of any such Borrowing by way of Bankers'
Acceptances (subject to Section 2.2(f)), and the date on which such Bankers'
Acceptances are to be accepted and the maturity of such Bankers' Acceptances, or
(vi) the aggregate amount of any such Borrowing of new Canadian Swing Loans and
the date on which such Canadian Swing Loans are to be advanced; and
(b) be received by Canadian Agent (i) in the case of Canadian Advances
other than Canadian Swing Loans, not later than 11:00 a.m., Toronto, Ontario
time, on (1) on the Business Day preceding the day on which any such Canadian
Base Rate Loans or Canadian Prime Rate Loans are to be made, (2) the third
Business Day preceding the day on which any such Eurodollar Loans are to be made
or (3) the third Business Day before such Bankers' Acceptances are to be issued
and (ii) in the case of Canadian Advances that are Canadian Swing Loans, not
later than 2:00 p.m., Toronto, Ontario time on the Business Day on which any
such Canadian Swing Loans are to be made.
Each such written request or confirmation must be made in the form and substance
of the "Borrowing Notice" attached hereto as Exhibit B, duly completed. Each
such telephonic request shall be deemed a representation, warranty,
acknowledgment and agreement by the applicable Canadian Borrower as to the
matters which are required to be set out in such written confirmation. Upon
receipt of any such Borrowing Notice, Canadian Agent shall give each Lender
prompt notice of the terms thereof (excluding Canadian Swing Loans) not later
than 5:00 p.m. Toronto, Ontario time on the day it receives such Borrowing
Notice from the applicable
3
Canadian Borrower if it receives such Borrowing Notice by 11:00 a.m., Toronto,
Ontario time, otherwise on the next Business Day. Each Borrowing Notice shall be
irrevocable and binding on the applicable Canadian Borrower. If all conditions
precedent to such new Canadian Advances have been met, (i) each Lender will on
the date requested promptly remit to Canadian Agent by 1:00 p.m. Toronto,
Ontario time its Canadian Advances made in Canadian Dollars to Canadian Agent's
office in Toronto, Canada and its Canadian Advances made in United States
Dollars to the US Account in New York, New York) in immediately available funds,
and upon receipt of such funds, unless to its actual knowledge any conditions
precedent to such Canadian Advances have been neither met nor waived as provided
herein, Canadian Agent shall promptly make such Canadian Advances available to
the applicable Canadian Borrower or (ii) each Canadian Resident Lender will
accept drafts of Bankers' Acceptances on the date requested in accordance with
Sections 2.1 through 2.3. Unless Canadian Agent shall have received prompt
notice from a Lender that such Lender will not make available to Canadian Agent
such Lender's new Canadian Advance, Canadian Agent may in its discretion assume
that such Lender has made such Canadian Advance available to Canadian Agent in
accordance with this section and Canadian Agent may if it chooses, in reliance
upon such assumption, make such Canadian Advance available to the applicable
Canadian Borrower. If and to the extent such Lender shall not so make its new
Canadian Advance available to Canadian Agent, such Lender and the applicable
Canadian Borrower severally agree to pay or repay to Canadian Agent within three
days after demand the amount of such Canadian Advance together with interest
thereon, for each day from the date such amount was made available to the
applicable Canadian Borrower until the date such amount is paid or repaid to
Canadian Agent, with interest at (1) the Canadian Prime Rate, if such Lender is
making such payment and (2) the interest rate applicable at the time to the
other new Canadian Advances made on such date, if a Canadian Borrower is making
such repayment; provided that Canadian Agent gave notice of the terms of the
Borrowing Notice to such Lender in accordance with the terms of this Section
1.2. If neither such Lender nor such Canadian Borrower pays or repays to
Canadian Agent such amount within such three-day period, Canadian Agent shall in
addition to such amount be entitled to recover from such Lender and from the
applicable Canadian Borrower, on demand, interest on such Canadian Advance at
the Default Rate applicable thereto, calculated from the date such amount was
made available to such Canadian Borrower. The failure of any Lender to make any
new Canadian Advance to be made by it hereunder shall not relieve any other
Lender of its obligation hereunder, if any, to make its new Canadian Advance,
but no Lender shall be responsible for the failure of any other Lender to make
any new Canadian Advance to be made by such other Lender.
Section 1.3. Continuations and Conversions of Existing Canadian Advances.
Subject to the terms of Section 2.3 with respect to Bankers' Acceptances, the
applicable Canadian Borrower may make the following elections with respect to
Canadian Advances and Canadian Swing Loans already outstanding under this
Agreement: (i) to convert any Type of Canadian Advance to any other Type of
Canadian Advance, provided that any such Conversion of any Eurodollar Loan must
be made on the last day of the Eurodollar Interest Period applicable thereto and
any such Conversion of a Bankers' Acceptance must be made on the date of
maturity thereof; (ii) to continue Eurodollar Loans beyond the expiration of
such Eurodollar Interest Period by designating a new Eurodollar Interest Period
to take effect at the time of such expiration, and to rollover any
4
existing Bankers' Acceptance by designating the new maturity date applicable
thereto; (iii) to convert Canadian Swing Loans to any Type of Canadian Advances
as a refinancing of such Canadian Swing Loans pursuant to Section 1.11; and (iv)
to continue or convert Overterm Canadian Loans to any Type of Canadian Advances.
In making such elections, the applicable Canadian Borrower may combine existing
Canadian Advances made pursuant to separate Borrowings into one new Borrowing or
divide existing Canadian Advances made pursuant to one Borrowing into separate
new Borrowings, provided that Canadian Borrowers may have no more than ten
Borrowings of US Dollar Eurodollar Loans outstanding at any time and no more
than ten Borrowings of Canadian Dollar Eurodollar Loans outstanding at any time,
provided further that Canadian Advances that are Overterm Canadian Loans may not
be combined with any other Canadian Advances that are Canadian Term Loans. To
make any such election, the applicable Canadian Borrower must give to Canadian
Agent written notice (or telephonic notice promptly confirmed in writing) of any
such Conversion or Continuation of existing Canadian Advances, with a separate
notice given for each new Borrowing. Each such notice constitutes a
"Continuation/Conversion Notice" hereunder and must:
(a) specify the existing Canadian Advances made under this Agreement which
are to be continued or converted;
(b) specify (i) the aggregate amount of any Borrowing of Canadian Base
Rate Loans or Canadian Prime Rate Loans into which such existing Canadian
Advances are to be continued or converted and the date on which such
Continuation or Conversion is to occur, or (ii) the aggregate amount of any
Borrowing of Eurodollar Loans into which such existing Canadian Advances are to
be continued or converted, the date on which such Continuation or Conversion is
to occur (which shall be the first day of the Eurodollar Interest Period which
is to apply to such Eurodollar Loans), and the length of the applicable
Eurodollar Interest Period, or (iii) the amount of any Borrowing of Bankers'
Acceptances into which such existing Canadian Advances are to be continued or
converted, the date on which such Continuation or Conversion is to occur, and
the maturity of such Bankers' Acceptances; and
(c) be received by Canadian Agent not later than 11:00 a.m., Toronto,
Ontario time, on (i) the first Business Day preceding the day on which any such
Continuation or Conversion to Canadian Base Rate Loans or Canadian Prime Rate
Loans is to occur, or (ii) the third Business Day preceding the day on which any
such Continuation or Conversion to Eurodollar Loans is to occur, or (iii) on the
third Business Day preceding the day on which any such Continuation or
Conversion to Bankers' Acceptances is to occur.
Each such written request or confirmation must be made in the form and substance
of the "Continuation/Conversion Notice" attached hereto as Exhibit C, duly
completed. Each such telephonic request shall be deemed a representation,
warranty, acknowledgment and agreement by the applicable Canadian Borrower as to
the matters which are required to be set out in such written confirmation. Upon
receipt of any such Continuation/Conversion Notice, Canadian Agent shall give
each Lender prompt notice of the terms thereof. Each Continuation/Conversion
Notice shall be irrevocable and binding on the applicable Canadian Borrower.
During the continuance of any Default, Canadian Borrowers may not make any
election to convert existing Canadian
5
Advances or Canadian Swing Loans made under this Agreement into Eurodollar Loans
or Bankers' Acceptances or continue existing Eurodollar Loans made under this
Agreement as Eurodollar Loans or to rollover existing Bankers' Acceptances into
new Bankers' Acceptances. If (due to the existence of a Default or for any other
reason) the applicable Canadian Borrower fails to timely and properly give or
are prevented hereunder from giving any Continuation/Conversion Notice with
respect to a Borrowing of existing Eurodollar Loans or Bankers' Acceptances at
least three days prior to the end of the Eurodollar Interest Period applicable
thereto or maturity of the Bankers' Acceptance, such Eurodollar Loans and
Bankers' Acceptances shall automatically be converted into Canadian Base Rate
Loans (in the case of US Dollar Eurodollar Loans) or Canadian Prime Rate Loans
(in the case of Canadian Dollar Eurodollar Loans and Bankers' Acceptances) at
the end of such Eurodollar Interest Period. No new funds shall be repaid by the
applicable Canadian Borrower or advanced by any Lender in connection with any
Continuation or Conversion of existing Canadian Advances pursuant to this
section, and no such Continuation or Conversion shall be deemed to be a new
advance of funds for any purpose; such Continuations and Conversions merely
constitute a change in terms of already outstanding Advances and the interest
rate applicable thereto.
Section 1.4. Repayments.
(a) During Canadian Revolving Period. Subject to the terms and conditions
hereof, either Canadian Borrower may borrow, repay, and reborrow hereunder
during the Canadian Revolving Period, so long as (i) the applicable Canadian
Borrower gives notice to Canadian Agent by 2:00 p.m., Toronto, Ontario time on
the Business Day immediately preceding the date of prepayment (and Canadian
Agent shall give each Lender notice thereof by 4:30 p.m. Toronto, Ontario time
on the date such notice is received from the applicable Borrower if it receives
such Borrowing Notice by 11:00 a.m., Toronto, Ontario time, otherwise on the
next Business Day) all partial prepayments of principal concurrently paid on the
Canadian Loans are increments of $100,000 in the Applicable Currency and in an
aggregate amount greater than or equal to $1,000,000 in the Applicable Currency
and (ii) the applicable Canadian Borrower pays all amounts owing in connection
with the prepayment of any Eurodollar Loan owing under Section 3.6.
(b) During Canadian Term Period.
(i) Optional Prepayments. Either Canadian Borrower may, upon giving
notice to Canadian Agent by 2:00 p.m., Toronto, Ontario time on the
Business Day immediately preceding the date of prepayment (and Canadian
Agent shall give each Lender notice thereof by 5:00 p.m. Toronto, Ontario
time on the date such notice is received from the applicable Canadian
Borrower if it receives such notice by 11:00 a.m., Toronto, Ontario time,
otherwise on the next Business Day), from time to time during the Term
Period and without premium or penalty, prepay the Canadian Loans including
Competitive Bid Notes and the Overterm Canadian Loans, in whole or in
part, so long as all partial prepayments of principal concurrently paid on
the Canadian Loans are in increments of $100,000 in the Applicable
Currency and in an aggregate amount greater than or equal to $1,000,000 in
the Applicable Currency and so long as Canadian Borrowers pay all amounts
owing in
6
connection with the prepayment of any Eurodollar Loan owing under Section
3.6, and provided that no Bankers' Acceptance may be prepaid prior to its
stated maturity date except in accordance with Section 2.5. Each
prepayment of principal (other than in repayment of Overterm Canadian
Loans) under this section shall be accompanied by all interest then
accrued and unpaid on the principal so prepaid, shall be in addition to,
and not in lieu of, all payments otherwise required to be paid under the
Canadian Loan Documents at the time of such prepayment, and shall first
reduce the semi-annual scheduled installments (other than the final
installment) during the Term Period in respect of Canadian Loans that are
not Competitive Bid Loans, then reduce the final installment in respect of
Canadian Loans that are not Competitive Bid Loans or Overterm Canadian
Loans, and then, unless otherwise designated by Canadian Borrowers, reduce
the outstanding Competitive Bid Loans in order of shortest maturity. Each
prepayment of principal under this section in respect of Overterm Canadian
Loans shall be accompanied by all interest then accrued and unpaid on the
principal so prepaid, shall be in addition to, and not in lieu of, all
payments otherwise required to be paid under the Canadian Loan Documents
at the time of such prepayment, and shall first reduce the semi-annual
scheduled installments (other than the final installment) during the Term
Period in respect of Overterm Canadian Loans, and then reduce the final
installment in respect of such Overterm Canadian Loans.
(ii) Scheduled Repayments of Principal. Subject to Section
1.4(b)(iii) during the Term Period, the applicable Canadian Borrower shall
repay the principal of the Canadian Loans that are not Competitive Bid
Loans or Overterm Canadian Loans in equal semi-annual installments, each
in an amount equal to two and one-half percent (2.5%) of the outstanding
principal balance of the Canadian Advances on the Canadian Conversion
Date. Such installments shall be due and payable on each June 30 and
December 31 each year and in a final installment due and payable on the
Canadian Facility Maturity Date in an amount equal to the entire unpaid
principal balance of such Loans outstanding on the Canadian Facility
Maturity Date.
(iii) Scheduled Repayments of Overterm Canadian Loans. From and
after the date any Overterm Canadian Loan arises, the applicable Canadian
Borrower shall repay the principal of the Overterm Canadian Loans in
semi-annual installments, each in an amount equal to two and one-half
percent (2.5%) of the outstanding aggregate principal balance of the
Overterm Canadian Loans on the date of each such semi-annual installment.
Such installments shall be due and payable on each June 30 and December 31
each year and in a final installment due and payable on the Canadian
Facility Maturity Date in an amount equal to the entire unpaid principal
balance of such Overterm Canadian Loans outstanding on the Canadian
Facility Maturity Date.
(iv) Income Tax Act (Canada). Except as otherwise provided in
Section 8.1 and except in the case of Overterm Canadian Loans, in no event
shall either Canadian Borrower be required to repay more than 25% of the
principal amount (for the purposes of subparagraph 212(1)(b)(vii) of the
Income Tax Act (Canada)) of the Canadian
7
Advances made to it prior to five years and a day after the Canadian
Conversion Date, including, but not limited to payments under
Section 1.4(b)(ii), 1.4(c) and 1.4(d).
(c) Mandatory Prepayments. Except to the extent permitted by Section
1.4(d), and subject to Sections 1.4(b)(iv) and 1.4(e), if the aggregate
principal amount of the outstanding Canadian Obligations ever exceeds the
Canadian Maximum Credit Amount, Canadian Borrowers shall immediately prepay the
principal of the Canadian Loans outstanding under the Canadian Agreement in an
amount at least equal to such excess. Each prepayment of principal under this
section shall be accompanied by all interest then accrued and unpaid on the
principal so prepaid. Any principal or interest prepaid pursuant to this section
shall be in addition to, and not in lieu of, all payments otherwise required to
be paid under the Canadian Loan Documents at the time of such prepayment.
(d) Currency Fluctuations. Notwithstanding any other provision of this
Agreement, if any Canadian Loan outstanding is denominated in C$, Canadian Agent
shall have the right to calculate the outstanding Canadian Obligations for all
purposes including making a determination from time to time of the available
undrawn portion of the Canadian Maximum Credit Amount. If following such
calculation, Canadian Agent determines that the outstanding Canadian Obligations
are greater than 105% of the Canadian Advances permitted hereby to be
outstanding at such time, then Canadian Agent shall so advise Canadian Borrowers
and, subject to Sections 1.4(b)(iv) and 1.4(e), Canadian Borrowers shall repay,
on the later of five Business Days after such advice and the next applicable
Interest Payment Date immediately following such date of calculation, an amount
sufficient to eliminate the excess over and above the aggregate amount of the
Canadian Loans permitted hereby to be outstanding at such time, together with
all accrued interest on the amount so paid.
(e) Application of Prepayment. Any mandatory prepayment of any principal
amount (for the purposes of this Section, and as used in subparagraph
212(1)(b)(vii) of the Income Tax Act (Canada)) made by a Canadian Borrower
pursuant to Sections 1.4(c) and 1.4(d) or otherwise in respect of a particular
loan, shall reduce the semi-annual scheduled installments (other than the final
installment) during the Term Period in respect of that loan in inverse order of
maturity. Such mandatory prepayments shall be applied to the Canadian Loans pro
rata based on outstanding principal; provided that if the amount of any
mandatory prepayment obligation is in excess of the amount of any remaining
semi-annual scheduled installments, the excess amount shall be paid by the
applicable Canadian Borrower as part of the final scheduled installment on the
Canadian Facility Maturity Date; and provided further that if any mandatory
prepayment relates to outstanding Bankers' Acceptances, the amount of such
mandatory prepayment shall be paid into the escrow fund maintained in accordance
with Section 2.5 until the maturity date of such outstanding Bankers'
Acceptances.
Section 1.5. Interest Rates and Fees.
(a) Interest Rates. The Canadian Loans shall bear interest payable by the
applicable Canadian Borrower as follows and all accrued and unpaid interest on
the Canadian Loans shall be
8
due and payable on the applicable Interest Payment Date at the place set forth
in the Canadian Notes:
(i) Each Canadian Base Rate Loan shall bear interest on each day
outstanding at the Canadian US Dollar Base Rate in effect on such day.
(ii) Each Canadian Prime Rate Loan shall bear interest on each day
outstanding at the Canadian Prime Rate in effect on such day.
(iii) Each US Dollar Eurodollar Loan shall bear interest on each day
during the related Eurodollar Interest Period at the related Adjusted US
Dollar Eurodollar Rate in effect on such day.
(iv) Each Canadian Dollar Eurodollar Loan shall bear interest on
each day during the related Eurodollar Interest Period at the related
Adjusted Canadian Dollar Eurodollar Rate in effect on such day.
(v) Each Canadian Swing Loan shall bear interest on each day
outstanding at the Canadian Swing Rate for such Canadian Swing Loan in
effect on such day.
(vi) All past due principal of and past due interest on the Canadian
Loans shall bear interest on each day outstanding at the applicable
Default Rate in effect on such day, and such interest shall be due and
payable daily as it accrues.
(b) Facility Fees. In consideration of each Lender's commitment to make
Canadian Advances under this Agreement, Devon Canada will pay to Canadian Agent
for the account of each Lender a facility fee determined on a daily basis by
applying (i) the Canadian Facility Fee Rate to such Lender's Percentage Share of
the Canadian Maximum Credit Amount (calculated excluding the Canadian Overterm
Facility Usage) on each day during the Canadian Revolving Period and (ii) the
Canadian Facility Fee Rate to such Lender's Percentage Share of the Canadian
Facility Usage (calculated excluding the Canadian Overterm Facility Usage) on
each day from the Canadian Conversion Date until the Canadian Facility Maturity
Date. In addition, in consideration of each Lender's commitment to issue
Overterm Canadian LCs and to make Overterm Canadian Loans pursuant to Section
2.8(a)(ii) of this Agreement, Devon Canada will pay to Canadian Agent for the
account of each Lender a facility fee determined on a daily basis by applying
the Canadian Facility Fee Rate to such Lender's Percentage Share of the Canadian
Overterm Facility Usage on each day from the date of this Agreement until the
Canadian Facility Maturity Date. These facility fees shall be due and payable in
arrears on the last day of each Fiscal Quarter and on the Canadian Facility
Maturity Date.
(c) Utilization Fees. In consideration of each Lender's commitment to make
Canadian Advances under this Agreement, Devon Canada will pay to Canadian Agent
for the account of each Lender a utilization fee determined on a daily basis by
applying a rate of 12.5 Basis Points per annum to such Lender's Percentage Share
of the Canadian Facility Usage on each day during the term of this Agreement
that the Canadian Facility Usage exceeds twenty-five percent (25.0%)
9
of the Canadian Maximum Credit Amount. This utilization fee shall be due and
payable in arrears on each Interest Payment Date for Canadian US Dollar Base
Rate Loans and on the date all Canadian Obligations are repaid in full. In the
event that Overterm Canadian Loans and/or Canadian LC Obligations is respect of
Overterm Canadian LCs are outstanding when a utilization fee is due and payable,
the utilization fee shall be allocated proportionately to the amounts thereof
relative to the overall Canadian Facility Usage on a daily basis.
(d) Stamping Fees. In consideration of each Canadian Resident Lender's
commitment to accept or participate in Bankers' Acceptances under this
Agreement, the applicable Canadian Borrower will pay to Canadian Agent for the
account of such Lender the Stamping Fee Rate multiplied by the face amount of
each Bankers' Acceptance accepted by such Lender under this Agreement calculated
for the number of days in the term of such Bankers' Acceptance. Such fee shall
be due and payable on the date on which such Bankers' Acceptances are accepted
and if such Canadian Resident Lender is purchasing such Bankers' Acceptance,
such fee shall be deducted from the Discount Proceeds paid to the applicable
Canadian Borrower.
(e) Conversion Fees relating to Canadian Revolving Loans. Upon the
conversion of Canadian Revolving Loans to Canadian Term Loans on the Canadian
Conversion Date, the applicable Canadian Borrower will pay to Canadian Agent for
the account of each Canadian Lender a conversion fee determined by applying a
rate of 12.5 Basis Points to such Canadian Lender's Percentage Share of the
principal amount of Canadian Revolving Loans owing by such Canadian Borrower
converted to Canadian Term Loans on the Canadian Conversion Date. This
conversion fee shall be due and payable on the Canadian Conversion Date.
(f) Conversion Fees relating to Overterm Canadian Loans. Upon a Matured
Canadian LC Obligation becoming an Overterm Canadian Loan pursuant to Section
2.8(a)(ii), the applicable Canadian Borrower will pay to Canadian Agent for the
account of each Canadian Lender a conversion fee determined by applying a rate
of 12.5 Basis Points to such Canadian Lender's Percentage Share of the principal
amount of the Overterm Canadian Loan arising on such date. This conversion fee
shall be due and payable on each such date.
(g) Canadian Agent's Fees. In addition to all other amounts due to
Canadian Agent under the Canadian Loan Documents, Devon Canada will pay fees to
Canadian Agent as described in a letter agreement of even date herewith between
US Agent and US Borrower.
Section 1.6. Extension of Canadian Conversion Date.
(a) Canadian Borrowers may, at their option and from time to time during
the Canadian Revolving Period, request an offer to extend the Canadian Revolving
Period by delivering to Canadian Agent a Request for an Offer of Extension not
more than sixty days and not less than thirty days prior to the then current
Canadian Conversion Date. Canadian Agent shall forthwith provide a copy of the
Request for an Offer of Extension to each of the Lenders. Upon receipt from
Canadian Agent of an executed Request for an Offer of Extension, each
10
Lender shall, within twenty days after the date of such Lender's receipt of such
request from Canadian Agent, either:
(i) notify Canadian Agent of its acceptance of the Request for an
Offer of Extension, and the terms and conditions, if any, upon which such
Lender is prepared to extend the Canadian Conversion Date; or
(ii) notify Canadian Agent that the Request for an Offer of
Extension has been denied, such notice to forthwith be forwarded by
Canadian Agent to Canadian Borrowers to allow Canadian Borrowers to seek a
replacement lender pursuant to Section 1.8 (any Lender giving notice of
such denial is herein called a "Non-Accepting Lender"). The failure of a
Lender to so notify Canadian Agent within such twenty day period shall be
deemed to be notification by such Lender to Canadian Agent that such
Lender has denied Canadian Borrowers' Request for an Offer of Extension.
(b) Provided that all Lenders provide notice to Canadian Agent under
Section 1.6(a) that they accept the Request for an Offer of Extension, or if
there are Non-Accepting Lenders, such Lenders shall have been repaid pursuant to
Section 1.8 or replacement lenders shall have become parties hereto pursuant to
Section 1.8 and shall have accepted the Request for an Offer of Extension, such
acceptance having common terms and conditions, Canadian Agent shall deliver to
Canadian Borrowers an Offer of Extension incorporating the said terms and
conditions. Such offer shall be open for acceptance by Canadian Borrowers until
the fifth Business Day immediately preceding the then current Canadian
Conversion Date. Upon written notice by Canadian Borrowers to Canadian Agent
accepting an outstanding Offer of Extension and agreeing to the terms and
conditions, if any, specified therein (the date of such notice of acceptance in
Section 1.6 and 1.8 being called the "Extension Date"), the Canadian Conversion
Date shall be extended to the date 364 days from the Extension Date and the
terms and conditions specified in such Offer of Extension shall be immediately
effective.
(c) Canadian Borrowers understand that the consideration of any Request
for an Offer of Extension constitutes an independent credit decision which each
Lender retains the absolute and unfettered discretion to make and that no
commitment in this regard is hereby given by a Lender and that any offer to
extend the Canadian Conversion Date may be on such terms and conditions in
addition to those set out herein as the extending Lenders stipulate.
Section 1.7. Conversion to Canadian Term Loan. Unless there is an
extension of the Canadian Revolving Period in accordance with Section 1.6,
effective at 11:59 p.m. Toronto, Ontario time on the day immediately preceding
the Canadian Conversion Date, and provided that no Event of Default shall have
occurred and be continuing, (i) each Lender's obligation to make new Canadian
Advances, Canadian Swing Lender's obligation to make new Canadian Swing Loans,
and Canadian LC Issuer's obligation to issue Letters of Credit hereunder shall
be canceled automatically, and (ii) each Lender's Canadian Loans shall become
term Canadian Loans ("Canadian Term Loans") maturing on the Canadian Facility
Maturity Date.
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Section 1.8. Non-Accepting Lender. Provided that Canadian Required Lenders
provide notice to Agent under Section 1.6(a) that they accept the Request for an
Offer of Extension, on notice of Canadian Borrowers to Agent, Canadian Borrowers
shall be entitled to choose any of the following in respect of each
Non-Accepting Lender prior to the expiration of the Canadian Revolving Period,
provided that if Canadian Borrowers do not make an election prior to the
expiration of the Canadian Revolving Period, Canadian Borrowers shall be deemed
to have irrevocably elected to exercise the provisions of Section 1.8(b)(ii):
(a) (i) the Non-Accepting Lender's obligations to make Canadian Advances
shall be canceled as of the Extension Date, the Canadian Maximum Credit Amount
shall be reduced by the amount so canceled, and on or prior to the Extension
Date the Canadian Borrowers shall repay in full all Canadian Obligations then
outstanding to the Non-Accepting Lender (as defined in Section 1.6(a)(ii)) , or
(ii) replace the Non-Accepting Lender by reaching satisfactory arrangements with
one or more existing Lenders or new Lenders, for the purchase, assignment and
assumption of all Canadian Obligations and US Obligations of the Non-Accepting
Lender, provided that any new Lender, with, if necessary, any Affiliate, shall
take a pro rata assignment of both Canadian Obligations and US Obligations, and
such Non-Accepting Lender shall be obligated to sell such Obligations in
accordance with such satisfactory arrangements; or
(b) Canadian Borrowers may elect to revoke and cancel the Request for an
Offer of Extension by giving notice of such revocation and cancellation to Agent
(which shall promptly notify the Lenders thereof), and concurrently therewith,
shall have the option to (i) cancel the obligations of Lenders under the
Canadian Agreement and, subject to the notice requirements set forth in Section
1.6(a) and to the provisions of Article III, repay in full all Canadian
Obligations, or (ii) have the outstanding Canadian Loans that are not
Competitive Bid Loans on the Canadian Conversion Date become term loans as
provided in Section 1.7.
In connection with any such replacement of a Lender Party pursuant to this
Section 1.8, the applicable Canadian Borrower shall pay all costs that would
have been due to such Lender Party pursuant to Section 3.6 if such Lender
Party's Canadian Advances had been prepaid at the time of such replacement.
Section 1.9. Competitive Bid Loans.
(a) Either Canadian Borrower may request that each Canadian Resident
Lender submit Competitive Bids (on a several basis) for requested maturities of
thirty days or more to the applicable Canadian Borrower on any Business Day
during the Canadian Revolving Period, provided that all Canadian Resident
Lenders are requested to make a Competitive Bid on the same basis at the same
time. In order to request Competitive Bids, the applicable Canadian Borrower
shall deliver by hand or facsimile to Canadian Agent a Competitive Bid Request,
to be received by Canadian Agent not later than 9:00 a.m., Toronto, Ontario time
one Business Day before the date specified for a proposed Competitive Bid Loan.
A Competitive Bid Request that does not conform substantially to the format of
Exhibit I may be rejected in Canadian Agent's sole discretion, and Canadian
Agent shall promptly notify the applicable Canadian Borrower of such
12
rejection by facsimile. After receiving an acceptable Competitive Bid Request,
Canadian Agent shall no later than 12:00 noon, Toronto, Ontario time on the date
such Competitive Bid Request is received by Canadian Agent, by facsimile deliver
to Canadian Resident Lenders an Invitation to Bid substantially in the form of
Exhibit J with respect thereto.
(b) Each Canadian Resident Lender may, in its sole discretion, make one or
more Competitive Bids to Canadian Agent responsive to each Competitive Bid
Request given by the applicable Canadian Borrower. Each Competitive Bid by a
Canadian Resident Lender must be received by Canadian Agent by facsimile not
later than 9:00 a.m., Toronto, Ontario time on the date specified for a proposed
Competitive Bid Loan. Multiple bids may be accepted by Canadian Agent.
Competitive Bids that do not conform substantially to the format of Exhibit K
may be rejected by Canadian Agent after conferring with, and upon the
instruction of, the applicable Canadian Borrower, and Canadian Agent shall
notify the bidding Canadian Resident Lender of such rejection as soon as
practicable. If any Canadian Resident Lender shall elect not to make a
Competitive Bid, such Canadian Resident Lender shall so notify Canadian Agent by
facsimile not later than 9:00 a.m., Toronto, Ontario time, on the date specified
for a Competitive Bid Loan; provided, however, that failure by any Canadian
Resident Lender to give such notice shall not cause such Canadian Resident
Lender to be obligated to make any Competitive Bid Loan and by such failure such
Lender shall be deemed to have rejected such Competitive Bid. A Competitive Bid
submitted by a Canadian Resident Lender shall be irrevocable.
(c) Promptly, and in no event later than 9:30 a.m., Toronto, Ontario time,
on the date specified for a proposed Competitive Bid Loan, Canadian Agent shall
notify the applicable Canadian Borrower by facsimile of all the Competitive Bids
made, the Competitive Bid Rate and the principal amount of each Competitive Bid
Loan in respect of which a Competitive Bid was made, and the identity of each
Canadian Resident Lender that made each Competitive Bid. Canadian Agent shall
send a copy of all Competitive Bids to the applicable Canadian Borrower for its
records as soon as practicable after completion of the bidding process.
(d) The applicable Canadian Borrower may, subject only to the provisions
hereof, accept or reject any Competitive Bid. The applicable Canadian Borrower
shall notify Canadian Agent by facsimile pursuant to a Competitive Bid
Accept/Reject Letter whether and to what extent the applicable Canadian Borrower
has decided to accept or reject any or all of the Competitive Bids, not later
than 10:00 a.m., Toronto, Ontario time, on the date specified for a proposed
Competitive Bid Loan; provided, however, that:
(i) the failure by the applicable Canadian Borrower to accept or
reject any Competitive Bid within the time period specified herein shall
be deemed to be a rejection of such Competitive Bid,
(ii) the aggregate amount of the Competitive Bids accepted by the
applicable Canadian Borrower shall not exceed the principal amount
specified in the Competitive Bid Request,
13
(iii) the aggregate amount of all outstanding Canadian Loans and
Canadian LC Obligations shall never exceed the Canadian Maximum Credit
Amount,
(iv) if the applicable Canadian Borrower shall accept a Competitive
Bid or Competitive Bids made at a particular Competitive Bid Rate, but the
amount of such Competitive Bid or Competitive Bids shall cause the total
amount of Competitive Bids to be accepted by the applicable Canadian
Borrower to exceed the amount specified in the Competitive Bid Request,
then the applicable Canadian Borrower shall accept a portion of such
Competitive Bid or Competitive Bids in an amount equal to the amount
specified in the Competitive Bid Request less the amount of all other
Competitive Bids accepted with respect to such Competitive Bid Request,
which acceptance, in the case of multiple Competitive Bids at such
Competitive Bid Rate, shall be made pro rata in accordance with the amount
of each such Competitive Bid at such Competitive Bid Rate, and
(v) no Competitive Bid shall be accepted for a Competitive Bid Loan
unless such Competitive Bid Loan is in a minimum principal amount of C $
5,000,000 or a higher integral multiple of C $1,000,000; provided,
however, that if a Competitive Bid Loan must be in an amount less than C
$5,000,000 because of the provisions of clause (iv) above, such
Competitive Bid Loan may be for a minimum of C $1,000,000 or any higher
integral multiple thereof, and in calculating the pro rata allocation of
acceptances or portions of multiple bids at a particular Competitive Bid
Rate pursuant to clause (iv), the amounts shall be rounded to integral
multiples of C $1,000,000 in a manner which shall be in the sole and
absolute discretion of the applicable Canadian Borrower.
(e) Promptly on each date the applicable Canadian Borrower accepts a
Competitive Bid, Canadian Agent shall notify each Canadian Resident Lender
whether or not its Competitive Bid has been accepted (and if so, in what amount
and at what Competitive Bid Rate) by facsimile transmission sent by Canadian
Agent, and each successful bidder will thereupon become bound, subject to the
other applicable conditions hereof, to make the Competitive Bid Loan in respect
of which its Competitive Bid has been accepted. After completing the
notifications referred to in the immediately preceding sentence, Canadian Agent
shall notify each Canadian Resident Lender of the aggregate principal amount of
all Competitive Bids accepted. Each Canadian Resident Lender which is to make a
Competitive Bid Loan shall, before 11:00 a.m., Toronto, Ontario time, on the
borrowing date specified in the Competitive Bid Request applicable thereto, make
available to Canadian Agent in immediately available funds the amount of each
Competitive Bid Loan to be made by such Canadian Resident Lender, and Canadian
Agent shall promptly deposit such funds to an account designated by the
applicable Canadian Borrower. As soon as practicable thereafter, Canadian Agent
shall notify each Canadian Resident Lender of the aggregate amount of
Competitive Bid Loans advanced, the respective Competitive Bid Interest Periods
thereof and Competitive Bid Rate applicable thereto.
(f) The obligation of the applicable Canadian Borrower to repay to each
Canadian Resident Lender the aggregate amount of all Competitive Bid Loans made
by such Canadian Resident Lender, together with interest accruing in connection
therewith, shall be evidenced by promissory notes (respectively, such Canadian
Resident Lender's "Competitive Bid Note") made
14
by the applicable Canadian Borrower payable to the order of such Canadian
Resident Lender in the form of Exhibit M, with appropriate insertions. The
amount of principal owing on any Canadian Resident Lender's Competitive Bid Note
at any given time shall be the aggregate amount of all Competitive Bid Loans
theretofore made by such Canadian Resident Lender thereunder minus all payments
of principal theretofore received by such Canadian Resident Lender thereon.
Interest on each Competitive Bid Note shall accrue and be due and payable as
provided herein and therein. The applicable Canadian Borrower shall repay on the
final day of the Competitive Bid Interest Period of each Competitive Bid Loan
(such date being that specified by the applicable Canadian Borrower for
repayment of such Competitive Bid Loan in the related Competitive Bid Request
and such date being no later than six months after the date of the Competitive
Bid Loan) the then unpaid principal amount of such Competitive Bid Loan. Subject
to Section 1.4(b) and the payment of amounts described in Section 3.6, the
applicable Canadian Borrower shall have the right to prepay any principal amount
of any Competitive Bid Loan.
(g) No Competitive Bid Loan shall be made within five Business Days after
the date of any other Competitive Bid Loan, unless the applicable Canadian
Borrower and Canadian Agent shall mutually agree otherwise. If Canadian Agent
shall at any time elect to submit a Competitive Bid in its capacity as a
Canadian Resident Lender, it shall submit such bid directly to the applicable
Canadian Borrower requesting such Competitive Bid one quarter of an hour earlier
than the latest time at which the other Canadian Resident Lenders are required
to submit their bids to Canadian Agent.
Section 1.10. Use of Proceeds. Canadian Borrowers shall use all Canadian
Advances and Canadian Swing Loans made under this Agreement to refinance
existing indebtedness (including any commercial paper issued by or for the
account of Canadian Borrowers), to finance capital expenditures, to refinance
Matured Canadian LC Obligations outstanding under this Agreement, and to provide
working capital for its operations and for other general business purposes.
Canadian Borrowers shall use all Letters of Credit issued under the Canadian
Agreement for its general corporate purposes. If any Canadian Advance or
Canadian Swing Loan is used for a purpose which is governed by Reg U, Canadian
Borrowers shall comply with Reg U in all respects. Each Canadian Borrower
represents and warrants that such Canadian Borrower is not engaged principally,
or as one of such Canadian Borrower's important activities, in the business of
extending credit to others for the purpose of purchasing or carrying Margin
Stock.
Section 1.11. Refinancings of Canadian Swing Loans. Canadian Agent, at any
time in its sole and absolute discretion may (and on the Canadian Conversion
Date Canadian Agent shall), upon notice given to each Lender by not later than
11:30 a.m., Toronto, Ontario time, on any Business Day, request that each Lender
make a Canadian Prime Rate Loan (or another Type of Canadian Advance if
requested by the applicable Canadian Borrower in accordance with Section 1.2) in
an aggregate amount equal to its Percentage Share of the aggregate unpaid
principal amount of any outstanding Canadian Swing Loans for the purpose of
refinancing such Canadian Swing Loans (in this section called a "Refinancing
Advance"). In any event, not later than 11:30 a.m., Toronto, Ontario time, on
the penultimate Business Day of each calendar month, Canadian Agent will notify
each Lender of the
15
aggregate amount of Canadian Swing Loans which are then outstanding and the
amount of the Refinancing Advance required to be made by each Lender to
refinance such outstanding Canadian Swing Loans (the aggregate amount of such
Refinancing Advance to be made by each Lender shall equal such Lender's
Percentage Share of such outstanding Canadian Swing Loans). Upon the giving of
notices by Canadian Agent described above, each Lender shall promptly remit to
Canadian Agent such Refinancing Advance in the manner described above in Section
1.2, so long as (a) Canadian Agent believed in good faith that all conditions to
making the subject Canadian Swing Loan were satisfied at the time such Canadian
Swing Loan was made, or (b) if the conditions to such Canadian Swing Loan were
not satisfied, the satisfaction of such conditions have been waived in writing
by Canadian Required Lenders in accordance with the provisions of this Agreement
(collectively, the "Refinancing Conditions"). The proceeds of the Refinancing
Advances made pursuant to the preceding sentence shall be paid to Canadian Agent
(and not to either Canadian Borrower) and applied to the payment of principal of
the outstanding Canadian Swing Loans. If and to the extent any Lender shall not
so make its Refinancing Advance, such Lender and the applicable Canadian
Borrower severally agree to pay to Canadian Agent (for delivery to Canadian
Swing Lender) within three days after demand the amount of such Refinancing
Advance together with interest thereon, for each day from the date such
Refinancing Advance was required to be made until the date such amount is paid
to Canadian Agent, with interest at (1) the Canadian Prime Rate, if such Lender
is making such payment and (2) the interest rate applicable at the time to the
other new Refinancing Advances, if a Canadian Borrower is making such repayment;
provided that Canadian Agent gave notice of the terms of the refinancing to such
Lender in accordance with the terms of this Section 1.11. If neither such Lender
nor such Canadian Borrower pays to Canadian Agent (for delivery to Canadian
Swing Lender) such amount within such three-day period, Canadian Swing Lender
shall in addition to such amount be entitled to recover from such Lender and
from the applicable Canadian Borrower, on demand, interest on such Refinancing
Advance at the Default Rate applicable thereto, calculated from the date such
Refinancing Advance was required to be made. Each Lender's obligation to make
Refinancing Advances pursuant to this Section shall be absolute and
unconditional and shall not be affected by any circumstances, including, without
limitation, (1) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against Canadian Agent, Canadian Borrowers or anyone
else for any reason whatsoever; (2) the occurrence or continuance of an Event of
Default or Default; (3) any adverse change in the condition (financial or
otherwise) of either Canadian Borrower; (4) any breach of this Agreement by
either Canadian Borrower, Canadian Agent or any Lender, except with respect to
the Refinancing Conditions; or (5) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing; provided, that in no
event shall a Lender be obligated to make a Refinancing Advance pursuant to this
Section if, after giving effect thereto, the outstanding principal balance of
such Lender's Canadian Advances would exceed its Percentage Share of the
Canadian Maximum Credit Amount.
Section 1.12. Re-allocation of Tranche B Maximum Credit Amount and
Canadian Maximum Credit Amount. Borrowers shall have the right (i) to
re-allocate up to US $100,000,000 of the unused Tranche B Maximum Credit Amount
to the Canadian Maximum Credit Amount (a "Tranche B Re-allocation") by reducing
the Tranche B Maximum
16
Credit Amount and increasing the Canadian Maximum Credit Amount by the same
amount and (ii) to re-allocate up to US $100,000,000 of the unused Canadian
Maximum Credit Amount to the Tranche B Maximum Credit Amount (a "Canadian
Re-allocation") by reducing the Canadian Maximum Credit Amount and increasing
the Tranche B Maximum Credit Amount by the same amount; provided that the
Tranche B Maximum Credit Amount shall never be greater than US $625,000,000, the
Canadian Maximum Credit Amount shall never be greater than US $375,000,000; the
aggregate amount of the Tranche B Maximum Credit Amount and the Canadian Maximum
Credit Amount shall never exceed US $800,000,000. A Re-allocation may be made
only on a Business Day which occurs during the Tranche B Revolving Period and
the Canadian Revolving Period, each Re-allocation shall remain in effect for at
least 90 days and thereafter until a subsequent Re-allocation is made in
accordance with the terms set forth in the Loan Documents, and no more than four
Re-allocations may be made during any Fiscal Year.
(a To make any Tranche B Re-allocation, US Borrower must give to US Agent
written notice (or telephonic notice promptly confirmed in writing) of such
Tranche B Re-allocation. Each such notice must:
(i) specify the amount by which the Tranche B Maximum Credit Amount
will be reduced, which amount must be equal to US $25,000,000 or any
higher integral multiple of US $1,000,000, and must also be equal to or
less than the amount by which the Tranche B Maximum Credit Amount then in
effect exceeds the Tranche B Facility Usage;
(ii) specify that the Canadian Maximum Credit Amount will be
increased by the same amount;
(iii) specify the effective date of such Tranche B Re-allocation
which must be at least 90 days after the effective date of the immediately
preceding Re-allocation (whether a Tranche B Re-allocation or a Canadian
Re-allocation); and
(iv) be received by US Agent not later than 10:00 a.m., Dallas,
Texas time, on or before the 10th Business Day preceding the day on which
such Tranche B Re-allocation is to occur.
(b To make any Canadian Re-allocation, Borrowers must give to US Agent
written notice (or telephonic notice promptly confirmed in writing) of such
Canadian Re-allocation. Each such notice must:
(i) specify the amount by which the Canadian Maximum Credit Amount
will be reduced, which amount must be equal to US $25,000,000 or any
higher integral multiple of US $1,000,000, and must also be equal to or
less than the amount by which the Canadian Maximum Credit Amount then in
effect exceeds the Canadian Facility Usage;
(ii) specify that the Tranche B Maximum Credit Amount will be
increased by the same amount;
17
(iii) specify the effective date of such Canadian Re-allocation
which must be at least 90 days after the effective date of the immediately
preceding Re-allocation (whether a Tranche B Re-allocation or a Canadian
Re-allocation); and
(iv) be received by US Agent not later than 10:00 a.m., Dallas,
Texas time, on or before the 10th Business Day preceding the day on which
such Canadian Re-allocation is to occur.
Each written request or confirmation described in this section constitutes
a "Re-allocation Notice" and must be made in the form and substance of the
"Re-allocation Notice" attached hereto as Exhibit G, duly completed. Each such
telephonic request shall be deemed a representation, warranty, acknowledgment
and agreement by Borrowers as to the matters which are required to be set out in
such written confirmation. Upon receipt of any such Re-allocation Notice, US
Agent shall give Canadian Agent, each Tranche B Lender and each Canadian Lender
prompt notice of the terms thereof. Each Re-allocation Notice shall be
irrevocable and binding on Borrowers.
ARTICLE II - Bankers' Acceptances and Letters of Credit
Section 2.1. Creation of Bankers' Acceptances. Upon receipt of a Borrowing
Notice and subject to the provisions of this Agreement, each Canadian Resident
Lender shall accept, in accordance with its Percentage Share of the requested
Borrowing from time to time such Bankers' Acceptances as Canadian Borrowers
shall request provided that:
(a Bankers' Acceptances shall be issued on a Business Day;
(b each Bankers' Acceptance shall have a term of 30, 60, 90 or 180 days
(excluding days of grace), as selected by Canadian Borrowers in the relevant
Borrowing Notice provided that each Bankers' Acceptance shall mature on a
Business Day;
(c the face amount of each Bankers' Acceptance shall be not less than
C$100,000 and in multiples of C$100,000 for any amounts in excess thereof; and
(d each Bankers' Acceptance shall be in a form acceptable to the Canadian
Resident Lenders.
Section 2.2. Terms of Acceptance by the Canadian Resident Lenders.
(a Delivery and Payment. Subject to Sections 2.3 and 2.4 and only if a
valid appointment pursuant to Section 2.2(e) is not in place, Canadian Borrowers
shall pre-sign and deliver to each Canadian Resident Lender bankers' acceptance
drafts in sufficient quantity to meet
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Canadian Borrowers' requirements for anticipated Borrowings by way of Bankers'
Acceptances. The applicable Canadian Borrower shall, at its option, provide for
payment to Canadian Agent for the benefit of Canadian Resident Lenders of each
Bankers' Acceptance on the date on which a Bankers' Acceptance matures, either
by payment of the full face amount thereof or through utilization of a
Conversion to another Type of Borrowing in accordance with this Agreement, or
through a combination thereof. Each Canadian Borrower waives presentment for
payment of Bankers' Acceptances by Canadian Resident Lenders and shall not claim
from Canadian Resident Lenders any days of grace for the payment at maturity of
Bankers' Acceptances. Any amount owing by Canadian Borrowers in respect of any
Bankers' Acceptance which is not paid in accordance with the foregoing, shall,
as and from the date on which such Bankers' Acceptance matures, be deemed to be
outstanding hereunder as a Canadian Prime Rate Loan.
(b No Liability. Canadian Agent and Canadian Resident Lenders shall not be
liable for any damage, loss or improper use of any bankers' acceptance draft
endorsed in blank except for any loss arising by reason of Canadian Agent or a
Canadian Resident Lender failing to use the same standard of care in the custody
of such bankers' acceptance drafts as Canadian Agent or such Canadian Resident
Lender use in the custody of their own property of a similar nature.
(c Bankers' Acceptances Purchased by Canadian Resident Lenders. Where the
applicable Canadian Borrower so elects in the Borrowing Notice or
Continuation/Conversion Notice, a Canadian Resident Lender shall purchase
Bankers' Acceptances accepted by it for an amount equal to the Discount
Proceeds.
(d Marketing. Where the applicable Canadian Borrower so elects in the
Borrowing Notice or Continuation/Conversion Notice, it shall be responsible for,
and shall make its own arrangements with respect to, the marketing of Bankers'
Acceptances.
(e Power of Attorney. To facilitate the procedures contemplated in this
Agreement, each Canadian Borrower appoints each Canadian Resident Lender from
time to time as the attorney-in-fact of such Canadian Borrower to execute,
endorse and deliver on behalf of such Canadian Borrower drafts or depository
bills in the form or forms prescribed by such Canadian Resident Lender for
Bankers' Acceptances denominated in Canadian Dollars. Each Bankers' Acceptance
executed and delivered by a Canadian Resident Lender on behalf of a Canadian
Borrower shall be as binding upon such Canadian Borrower as if it had been
executed and delivered by a duly authorized officer of such Canadian Borrower.
The foregoing appointment shall cease to be effective, in respect of any
Canadian Resident Lender regarding a Canadian Borrower, three Business Days
following receipt by such Canadian Resident Lender of a written notice from such
Canadian Borrower revoking such appointment (which notice shall be copied to the
Canadian Agent); provided that any such revocation shall not affect Bankers'
Acceptances previously executed and delivered by such Canadian Resident Lender
pursuant to such appointment.
(f Non-resident Lenders Participation in Borrowing of Bankers' Acceptances
by Making Canadian Dollar Eurodollar Loans. As part of each Borrowing by way of
Bankers' Acceptances from Canadian Resident Lenders, each Non-resident Lender
shall, with respect to its
19
obligations to fund such Borrowing, make a Canadian Dollar Eurodollar Loan by
advancing Canadian Dollars in the amount of its Percentage Share of such
Borrowing having a Eurodollar Interest Period that is substantially the same as
the period to maturity of the Bankers' Acceptances that are accepted in such
Borrowing by Canadian Resident Lenders in order that all Borrowings other than
Competitive Bid Loans shall remain pro rata during the term of this Agreement.
Such Canadian Dollar Eurodollar Loan shall otherwise be made on the terms set
forth in Article I with respect to such Type of Loan.
(g Canadian Dollars Unavailable to Non-resident Lenders. In the event that
(i) either Canadian Borrower has requested a Borrowing in Canadian Prime Rate
Loans or (ii) the Loans in any Borrowing are automatically converted to Canadian
Prime Rate Loans, and a Non-resident Lender is unable to obtain Canadian Dollars
with which to fund its Percentage Share of such Borrowing, such Non-resident
Lender may, with respect to its obligations to fund such Borrowing, make a
Canadian Base Rate Loan in an amount equal to the US Dollar Exchange Equivalent
of its Percentage Share of such Borrowing.
(h Pro-Rata Treatment of Canadian Advances.
(i) Each Canadian Advance shall be made available by each Lender and
all repayments and reductions in respect thereof shall be made and applied
in a manner so that the Canadian Advances outstanding hereunder to each
Lender will, to the extent possible (but in any event, to the extent
necessary to comply with Section 1.4(b)(iii)), thereafter be pro rata in
accordance with such Lender's Percentage Share. The Canadian Agent is
authorized by each Canadian Borrower and each Lender to determine, in its
sole and unfettered discretion, the portion of each Canadian Advance and
each Type of Canadian Advance to be made available by each Lender and the
application of repayments and reductions of Canadian Advances to give
effect to the provisions of this Section, provided that no Lender shall,
as a result of any such determination, have a Percentage Share of the
Canadian Advances which is in excess of its Percentage Share of the
Canadian Maximum Credit Amount.
(ii) In the event it is not practicable to allocate Bankers'
Acceptances to each Lender such that the aggregate amount of Bankers'
Acceptances required to be purchased by such Lender hereunder is in a
whole multiple of C $100,000, the Canadian Agent is authorized by each
Canadian Borrower and each Lender to make such allocation as the Canadian
Agent determines in its sole and unfettered discretion may be equitable in
the circumstances and, if the aggregate amount of such Bankers'
Acceptances is not a whole multiple of C $100,000, then the Canadian Agent
may allocate (on a basis considered by it to be equitable) the excess of
such Canadian Advance over the next lowest whole multiple of C $100,000 to
one Lender, which shall purchase a Bankers' Acceptance with a face amount
equal to the excess and having the same term as the corresponding Bankers'
Acceptances. In no event shall the portion of the outstanding Borrowings
by way of Bankers' Acceptances of a Lender exceed such Lenders' Percentage
Share of the Aggregate Borrowings by way of Bankers' Acceptances by more
than C $100,000 as a result of such exercise of discretion by the Canadian
Agent.
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(iii) If during the term of any Bankers' Acceptance accepted by a
Lender hereunder the Applicable Margin changes or an Event of Default
occurs and is continuing, the fee paid to such Lender by the applicable
Borrower pursuant to Section 1.5(d) (in this paragraph called the "Initial
Fee") with respect to such Bankers' Acceptance shall be recalculated based
upon such change in the Applicable Margin or the existence of such Event
of Default for the number of days during the term of such Bankers'
Acceptance that such change is applicable or such Event of Default exists.
If such recalculated amount is in excess of the Initial Fee then such
Canadian Borrower shall pay to such Lender the amount of such excess, and
if such recalculated amount is less than the Initial Fee, then the amount
of such reduction shall be credited to other amounts payable by such
Canadian Borrower to such Lender.
Section 2.3. General Procedures for Bankers' Acceptances.
(a Notice. Either Canadian Borrower may in the Borrowing Notice or in a
Continuation/Conversion Notice request a Borrowing by way of Bankers'
Acceptances and, if the applicable Canadian Borrower is responsible for
marketing of such Bankers' Acceptances under Section 2.2(d), by subsequent
notice to Canadian Agent provide Canadian Agent, which shall in turn notify each
Canadian Resident Lender, with information as to the discount proceeds payable
by the purchasers of the Bankers' Acceptances and the party to whom delivery of
the Bankers' Acceptances by each Canadian Resident Lender is to be made against
delivery to each Canadian Resident Lender of the applicable discount proceeds,
but if it does not do so, the applicable Canadian Borrower shall initiate a
telephone call to Canadian Agent by 10:00 a.m. Toronto, Ontario time on the date
of advance, or the date of the Continuation or Conversion, as applicable, and
provide such information to Canadian Agent. Such discount proceeds less the fee
calculated in accordance with Section 1.5(d) shall promptly be delivered to the
Canadian Agent. Any such telephone advice shall be subject to Section 1.2 and
shall be confirmed by a written notice of the applicable Canadian Borrower to
Canadian Agent prior to 2:00 p.m. Toronto, Ontario time on the same day.
(b Continuations. In the case of a Continuation of maturing Bankers'
Acceptances, issued by a Canadian Resident Lender, such Canadian Resident
Lender, in order to satisfy the continuing liability of the applicable Canadian
Borrower to the Canadian Resident Lender for the face amount of the maturing
Bankers' Acceptances issued by such Canadian Borrower, shall retain for its own
account the Net Proceeds of each new Bankers' Acceptance issued by it in
connection with such Continuation; and the applicable Canadian Borrower shall,
on the maturity date of the maturing Bankers' Acceptances issued by such
Canadian Borrower, pay to Canadian Agent for the benefit of Canadian Resident
Lenders an amount equal to the difference between the face amount of the
maturing Bankers' Acceptances and the aggregate Net Proceeds of the new Bankers'
Acceptances.
(c Conversion from Canadian Prime Rate Loans and Canadian Dollar
Eurodollar Loans. In the case of a Conversion from a Borrowing of Canadian Prime
Rate Loans or Canadian
21
Dollar Eurodollar Loans into a Borrowing by way of Bankers' Acceptances to be
accepted by a Canadian Resident Lender pursuant to Sections 2.1, 2.2 and 2.3,
such Canadian Resident Lender, in order to satisfy the continuing liability of
the applicable Canadian Borrower to it for the principal amount of the Canadian
Prime Rate Loans or Canadian Dollar Eurodollar Loans owing by such Canadian
Borrower being converted, shall retain for its own account the Discount Proceeds
of each new Bankers' Acceptance issued by it in connection with such Conversion;
and the applicable Canadian Borrower shall, on the date of issuance of the
Bankers' Acceptances, pay to Canadian Agent for the benefit of Canadian Resident
Lenders an amount equal to the difference between the aggregate principal amount
of the Canadian Prime Rate Loans or Canadian Dollar Eurodollar Loans owing by
such Canadian Borrower being converted owing to the Canadian Resident Lenders
and the aggregate Discount Proceeds of such Bankers' Acceptances.
(d Conversions to Canadian Loans in Canadian Dollars. In the case of a
Conversion of a Borrowing by way of Bankers' Acceptances into Canadian Loans,
each Canadian Resident Lender, in order to satisfy the liability of the
applicable Canadian Borrower to it for the face amount of the maturing Bankers'
Acceptances, shall record the obligation of the applicable Canadian Borrower to
it as a Canadian Prime Rate Loan, unless the applicable Canadian Borrower
provides for payment to Canadian Agent for the benefit of Canadian Resident
Lenders of the face amount of the maturing Bankers' Acceptance in some other
manner acceptable to Canadian Resident Lenders, including Conversion to another
Type of Canadian Loan pursuant to a Continuation/Conversion Notice.
(e Conversion from or to Canadian Loans in U.S. Dollars. In the case of a
conversion of Bankers' Acceptances from or to a Canadian Base Rate Loans or US
Dollar Eurodollar Loans, the parties to which this Section applies shall follow
the notice procedures set out in Section 1.3 and the funding procedures set out
in Section 2.3 (c) and (d) without netting of funds.
(f Authorization. Canadian Borrowers hereby authorize each Canadian
Resident Lender to complete, stamp, hold, sell, rediscount or otherwise dispose
of all Bankers' Acceptances accepted by it pursuant to this Section in
accordance with the instructions provided by Canadian Borrowers pursuant to
Section 1.3, as applicable.
(g Depository Notes. The parties agree that in the administering of
Bankers' Acceptances, each Lender may avail itself of the debt clearing services
offered by a clearing house for depository notes pursuant to the Depository
Bills and Notes Act (Canada) and that the procedures set forth in Article II be
deemed amended to the extent necessary to comply with the requirements of such
debt clearing services.
Section 2.4. Execution of Bankers' Acceptances. The signatures of any
authorized signatory on Bankers' Acceptances may, at the option of Canadian
Borrowers, be reproduced in facsimile and such Bankers' Acceptances bearing such
facsimile signatures shall be binding on Canadian Borrowers as if they had been
manually signed by such authorized signatory. Notwithstanding that any person
whose signature appears on any Bankers' Acceptance as a signatory may no longer
be an authorized signatory of Canadian
22
Borrowers at the date of issuance of a Bankers' Acceptance, and notwithstanding
that the signature affixed may be a reproduction only, such signature shall
nevertheless be valid and sufficient for all purposes as if such authority had
remained in force at the time of such issuance and as if such signature had been
manually applied, and any such Bankers' Acceptance so signed shall be binding on
Canadian Borrowers.
Section 2.5. Escrowed Funds. Upon the occurrence of an Event of Default
and an acceleration of the Canadian Obligations under Section 8.1 or upon a
prepayment permitted under Section 1.4, the applicable Canadian Borrower shall
forthwith pay to Canadian Agent for deposit into an escrow account maintained by
and in the name of Canadian Agent for the benefit of Canadian Resident Lenders
in accordance with their Percentage Shares an amount equal to the Canadian
Resident Lenders' maximum potential liability (as determined by Canadian Agent)
under then outstanding Bankers' Acceptances for the applicable Canadian Borrower
(the "Escrow Funds"). The Escrow Funds shall be held by Canadian Agent for
set-off against future Canadian Obligations of the applicable Canadian Borrower
and pending such application shall bear interest at the rate declared by
Canadian Agent from time to time as that payable by it in respect of deposits
for such amount and for such period relative to the maturity date of the
Bankers' Acceptances, as applicable. If such Event of Default is either waived
or cured in compliance with the terms of this Agreement, then the Escrow Funds,
together with any accrued interest to the date of release, shall be forthwith
released to the applicable Canadian Borrower.
Section 2.6. Letters of Credit. Subject to the terms and conditions
hereof, either Canadian Borrower may during the Canadian Revolving Period
request Canadian LC Issuer to issue one or more Letters of Credit denominated in
either Canadian Dollars or US Dollars, provided that, after taking such Letter
of Credit into account:
(a the Canadian Facility Usage does not exceed the Canadian Maximum Credit
Amount at such time;
(b the aggregate amount of Canadian LC Obligations arising from Letters of
Credit issued under this Agreement at such time does not exceed the Canadian LC
Sublimit;
(c the expiration date of such Letter of Credit is no more than one year
after the date of issuance thereof;
(d such Letter of Credit is to be used for general corporate purposes of
such Canadian Borrower or one or more of its Subsidiaries;
(e such Letter of Credit is not directly or indirectly used to assure
payment of or otherwise support any Indebtedness of any Person other than
Indebtedness of any Restricted Person permitted by this Agreement;
(f the issuance of such Letter of Credit will be in compliance with all
applicable governmental restrictions, policies, and guidelines and will not
subject Canadian LC Issuer to any cost which is not reimbursable under Article
III;
23
(g the form and terms of such Letter of Credit are acceptable to Canadian
LC Issuer in its reasonable discretion; and
(h all other conditions in this Agreement to the issuance of such Letter
of Credit have been satisfied.
Subject to the terms and conditions set forth herein, Canadian LC Issuer
will, in reliance upon the agreements of the other Lenders set forth in Section
2.8(a), honor any such request if the foregoing conditions (a) through (h) (in
this Section 2.6 called the "LC Conditions") have been met as of the date of
issuance of such Letter of Credit. Canadian LC Issuer may choose to honor any
such request for any other Letter of Credit but has no obligation to do so and
may refuse to issue any other requested Letter of Credit for any reason which
Canadian LC Issuer in its sole discretion deems relevant.
Section 2.7. Requesting Letters of Credit. The applicable Canadian
Borrower must make written application for any Letter of Credit at least three
Business Days before the date on which the applicable Canadian Borrower desires
for Canadian LC Issuer to issue such Letter of Credit. By making any such
written application the applicable Canadian Borrower shall be deemed to have
represented and warranted that the LC Conditions described in Section 2.6 will
be met as of the date of issuance of such Letter of Credit. Each such written
application for a Letter of Credit must be made in writing on Canadian LC
Issuer's standard form of Letter of Credit Application, the terms and provisions
of which are hereby incorporated herein by reference (or in such other form as
may mutually be agreed upon by Canadian LC Issuer and the applicable Canadian
Borrower). Three Business Days after the LC Conditions for a Letter of Credit
have been met as described in Section 2.6 (or if Canadian LC Issuer otherwise
desires to issue such Letter of Credit), Canadian LC Issuer will issue such
Letter of Credit at Canadian LC Issuer's office in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇. If any
provisions of any LC Application conflict with any provisions of this Agreement,
the provisions of this Agreement shall govern and control.
Section 2.8. Reimbursement and Participations.
(a Reimbursement by Canadian Borrowers.
(i) Prior to Canadian Conversion Date. Each Matured Canadian LC
Obligation arising prior to the Canadian Conversion Date from a Letter of
Credit issued under the Canadian Agreement shall constitute Canadian Prime
Rate Loans made by Canadian LC Issuer to the applicable Canadian Borrower
even if any condition precedent to the making of such a Loan shall not
have been satisfied. Each Lender shall (in all circumstances and without
set-off or counterclaim) purchase from Canadian LC Issuer its Percentage
Share of such Canadian Prime Rate Loans and pay to Canadian LC Issuer on
demand on the date on which such Matured LC Obligation arises, in
immediately available funds at Canadian LC Issuer's address for notices
hereunder, such Lender's Percentage Share of such Matured Canadian LC
Obligation. Each Lender's obligation to pay
24
Canadian LC Issuer pursuant to the terms of this subsection is irrevocable
and unconditional. If any amount required to be paid by any Lender to
Canadian LC Issuer pursuant to this subsection is paid by such Lender to
Canadian LC Issuer within three Business Days after the date such payment
is due, Canadian LC Issuer shall in addition to such amount be entitled to
recover from such Lender, on demand, interest thereon calculated from such
due date at the Canadian Prime Rate. If any amount required to be paid by
any Lender to Canadian LC Issuer pursuant to this subsection is not paid
by such Lender to Canadian LC Issuer within three Business Days after the
date such payment is due, Canadian LC Issuer shall in addition to such
amount be entitled to recover from such Lender, on demand, interest
thereon calculated from such due date at the applicable Default Rate.
(ii) From and After Canadian Conversion Date. Each Matured Canadian
LC Obligation arising from and after the Canadian Conversion Date from an
Overterm Canadian LC issued under the Canadian Agreement shall constitute
Canadian Prime Rate Loans made by Canadian LC Issuer to the applicable
Canadian Borrower and no conditions precedent to the making of such a Loan
shall be required (herein called "Overterm Canadian Loans"). Each Lender
shall (in all circumstances and without set-off or counterclaim) purchase
from Canadian LC Issuer its Percentage Share of such Canadian Prime Rate
Loans and pay to Canadian LC Issuer on demand on the date on which such
Matured LC Obligation arises, in immediately available funds at Canadian
LC Issuer's address for notices hereunder, such Lender's Percentage Share
of such Matured Canadian LC Obligation. Each Lender's obligation to pay
Canadian LC Issuer pursuant to the terms of this subsection is irrevocable
and unconditional. If any amount required to be paid by any Lender to
Canadian LC Issuer pursuant to this subsection is paid by such Lender to
Canadian LC Issuer within three Business Days after the date such payment
is due, Canadian LC Issuer shall in addition to such amount be entitled to
recover from such Lender, on demand, interest thereon calculated from such
due date at the Canadian Prime Rate. If any amount required to be paid by
any Lender to Canadian LC Issuer pursuant to this subsection is not paid
by such Lender to Canadian LC Issuer within three Business Days after the
date such payment is due, Canadian LC Issuer shall in addition to such
amount be entitled to recover from such Lender and from the applicable
Canadian Borrower, on demand, interest thereon calculated from such due
date at the applicable Default Rate.
(b Calculations. A written advice setting forth in reasonable detail the
amounts owing under this section, submitted by Canadian LC Issuer to Canadian
Borrowers or any Lender from time to time, shall be conclusive, absent manifest
error, as to the amounts thereof.
Section 2.9. Letter of Credit Fees. In consideration of Canadian LC
Issuer's issuance of any Letter of Credit, the applicable Canadian Borrower
agrees to pay (a) to Canadian 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 Letter of Credit, payable on the date of issuance, and (b)
to Canadian Agent, for the account of all Lenders in accordance with their
respective Percentage Shares, a letter of credit issuance fee calculated by
25
applying the Applicable Margin to the face amount of all Letters of Credit
outstanding on each day, payable in arrears on the last day of each Fiscal
Quarter. In addition, the applicable Canadian Borrower will pay to LC Issuer its
standard drawing and other processing fees upon any drawing under a Letter of
Credit.
Section 2.10. No Duty to Inquire.
(a Drafts and Demands. Canadian LC Issuer is authorized and instructed to
accept and pay drafts and demands for payment under any 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. Canadian 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 Letter of Credit, and payment by Canadian LC Issuer
to any such beneficiary when requested by any such purported officer,
representative or agent is hereby authorized and approved. Canadian Borrowers
release each Lender Party from, and agree 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.
(b Extension of Maturity. If the maturity of any 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 Letter of Credit is made at the request of any Restricted Person,
or if the amount of any 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 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 Canadian LC Issuer, Canadian 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 Letter of Credit provides that
it is transferable, Canadian LC Issuer shall have no duty to determine the
proper identity of anyone appearing as transferee of such Letter of Credit, nor
shall Canadian 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 Canadian LC Issuer to any purported transferee or
transferees as determined by Canadian LC Issuer is hereby authorized and
approved, and Canadian Borrowers release each Lender Party from, and agree 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
26
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 2.11. 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 LC Issuer an amount equal to such excess. Canadian LC Issuer will hold
such amount to apply against the remaining Canadian LC Obligations outstanding
under the Canadian Agreement (all such amounts held for Canadian LC Obligations
under this Section 2.11(a) or Section 2.11(b) being herein collectively called
"LC Collateral") and the other Canadian Obligations, and such 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
LC Issuer may have under any other document or agreement relating to any Letter
of Credit, LC Collateral or Canadian LC Obligation, including any LC
Application, or any rights which any Lender Party may have to otherwise apply
any payments by Canadian Borrowers and any 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 LC Issuer
immediately an amount equal to the aggregate Canadian LC Obligations which are
then outstanding.
(c Investment of LC Collateral. Pending application thereof, all LC
Collateral shall be invested by Canadian LC Issuer in such Investments as
Canadian LC Issuer 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 LC
Issuer shall release any remaining LC Collateral. Each Canadian Borrower hereby
assigns and grants to Canadian LC Issuer a continuing security interest in all
LC Collateral paid by it to Canadian LC Issuer, all Investments purchased with
such 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 LC Issuer
shall have all of the rights and
27
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 LC Collateral for any
reason and fails to do so on the day when required, Canadian LC Issuer may
without notice to Canadian Borrowers or any other Restricted Person provide such
LC Collateral (whether by transfers from other accounts maintained with Canadian
LC Issuer, or otherwise) using any available funds of the applicable Canadian
Borrower or any other Person also liable to make such payments.
ARTICLE III - Payments to Lenders
Section 3.1. General Procedures. Each Canadian Borrower will make each
payment which it owes under the Canadian Loan Documents to Canadian Agent in
Toronto, Canada, if such payment is being made in Canadian Dollars, or to the US
Account, if such payment is being made in US Dollars, in each case for the
account of the Lender Party to whom such payment is owed, without set-off,
deduction or counterclaim, and in immediately available funds, provided that any
such payment may be made net of any deduction or withholding for or on account
of any withholding tax which such Canadian Borrower is required at Law to
withhold or deduct except as otherwise provided in Sections 3.2(d) and 3.2(e).
Each such payment must be received by Canadian Agent not later than 11:00 a.m.,
Toronto, Ontario time, on the date such payment becomes due and payable. Any
payment received by Canadian Agent after such time will be deemed to have been
made on the next following Business Day. Should any such payment become due and
payable on a day other than a Business Day, the maturity of such payment shall
be extended to the next succeeding Business Day, and, in the case of a payment
of principal or past due interest, interest shall accrue and be payable thereon
for the period of such extension as provided in the Canadian Loan Document under
which such payment is due. Each payment under a Canadian Loan Document shall be
due and payable at the place provided therein and, if no specific place of
payment is provided, shall be due and payable at the place of payment of
Canadian Agent's Canadian Note. When Canadian Agent collects or receives money
on account of the Canadian Obligations of a Canadian Borrower, Canadian Agent
shall distribute all money so collected or received by 2:00 p.m. Toronto,
Ontario time on the Business Day received, if received by 11:00 a.m. Toronto,
Ontario time, otherwise on the day of deemed receipt, and each Lender Party
shall apply all such money so distributed, as follows:
(a first, for the payment of all Canadian Obligations of such Canadian
Borrower which are then due (and if such money is insufficient to pay all such
Canadian Obligations, first to any reimbursements due Canadian Agent under
Section 6.9 or 10.4, then to any reimbursement due any other Lender Party under
Section 10.4, and then to the partial payment of all other Canadian Obligations
of such Canadian Borrower then due in proportion to the amounts thereof, or as
Lender Parties shall otherwise agree);
(b then for the prepayment of amounts owing by such Canadian Borrower
under the Canadian Loan Documents (other than principal on the Canadian Notes)
if so specified by such Canadian Borrower;
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(c then for the prepayment of principal on the Canadian Notes of such
Canadian Borrower that are not Competitive Bid Notes, together with accrued and
unpaid interest on the principal so prepaid; and
(d last, for the payment or prepayment of any other Canadian Obligations
of such Canadian Borrower.
All payments applied to principal or interest on any Canadian Note shall
be applied first to any interest then due and payable, then to principal then
due and payable, and last to any prepayment of principal and interest in
compliance with Sections 1.4 and 2.8. All distributions of amounts described in
any of subsections (b), (c) or (d) above shall be made by Canadian Agent pro
rata to each Lender Party then owed Canadian Obligations described in such
subsection in proportion to all amounts owed to all Lender Parties which are
described in such subsection; provided that if any Lender then owes payments to
Canadian LC Issuer for the purchase of a participation under Section 2.8(a) or
to Canadian Agent under Section 9.8, any amounts otherwise distributable under
this section to such Lender shall be deemed to belong to Canadian LC Issuer, or
Canadian Agent, respectively, to the extent of such unpaid payments, and
Canadian Agent shall apply such amounts to make such unpaid payments rather than
distribute such amounts to such Lender.
Section 3.2. Change in Law; Gross Up; Increased Cost and Reduced Return.
(a If, after the date hereof, the adoption of any applicable Law, rule, or
regulation, or any change in any applicable Law, rule, or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender Party (or its Applicable
Lending Office) with any request or directive (whether or not having the force
of Law) of any such Governmental Authority, central bank, or comparable agency
(the occurrence of any of the foregoing events being herein referred to as a
"Change in Law"):
(i) shall subject such Lender Party (or its Applicable Lending
Office) to any tax, duty, deduction or any other charge (other than with
respect to Withholding Tax as defined in Section 3.2(d)) with respect to
any Eurodollar Loans, Bankers' Acceptances or Competitive Bid Loans, or
its obligation to make Eurodollar Loans, accept Bankers' Acceptances or
issue Letters of Credit, or change the basis of taxation of any amounts
payable to such Lender Party (or its Applicable Lending Office) under this
Agreement or its Canadian Note in respect of any Eurodollar Loans,
Bankers' Acceptances or Competitive Bid Loans other than taxes (including
franchise taxes) imposed on the overall net income or capital of such
Lender Party by the jurisdiction under the Laws of which such Lender Party
(or its Applicable Lending Office) is organized or is a resident for tax
purposes or any political subdivision thereof;
(ii) shall impose, modify, or deem applicable any reserve, special
deposit, assessment, or similar requirement (other than the Reserve
Requirement utilized in the
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determination of the Adjusted US Dollar Eurodollar Rate and Adjusted
Canadian Dollar Eurodollar Rate) relating to any extensions of credit or
other assets of, or any deposits with or other liabilities or commitments
of, such Lender Party (or its Applicable Lending Office), including the
commitment of such Lender Party hereunder; or
(iii) shall impose on such Lender Party (or its Applicable Lending
Office) or the London interbank market any other condition affecting this
Agreement or its Canadian Notes or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
Party (or its Applicable Lending Office) of making, converting into, continuing,
or maintaining any Eurodollar Loans, Bankers' Acceptances or Competitive Bid
Loans or to reduce any sum received or receivable by such Lender Party (or its
Applicable Lending Office) under this Agreement or its Canadian Notes with
respect to any Eurodollar Loans, Bankers' Acceptances or Competitive Bid Loans,
then the applicable Canadian Borrower shall pay to such Lender Party on demand
such amount or amounts as will compensate such Lender Party for such increased
cost or reduction. If any Lender Party requests compensation by Canadian
Borrowers under this Section 3.2(a), Canadian Borrowers may, by notice to such
Lender Party (with a copy to Canadian Agent), suspend the obligation of such
Lender Party to make or continue Canadian Advances of the Type with respect to
which such compensation is requested, or to convert Canadian Advances of any
other Type into Canadian Advances of such Type, until the event or condition
giving rise to such request ceases to be in effect (in which case the provisions
of Section 3.5 shall be applicable); provided that such suspension shall not
affect the right of such Lender Party to receive the compensation so requested.
(b If, after the date hereof, Canadian LC Issuer or any Lender Party shall
have determined that the adoption of any applicable Law, rule, or regulation
regarding capital adequacy or any change therein or in the interpretation or
administration thereof by any Governmental Authority, central bank, or
comparable agency charged with the interpretation or administration thereof, or
any request or directive regarding capital adequacy (whether or not having the
force of Law) of any such Governmental Authority, central bank, or comparable
agency, has or would have the effect of reducing the rate of return on the
capital of such Lender Party or any corporation controlling such Lender Party as
a consequence of the obligations of such Lender Party hereunder to a level below
that which such Lender Party or such corporation could have achieved but for
such adoption, change, request, or directive (taking into consideration its
policies with respect to capital adequacy), then from time to time upon demand
the applicable Canadian Borrower shall pay to such Lender Party such additional
amount or amounts as will compensate such Lender Party for such reduction, but
only to the extent that such Lender Party has not been compensated therefor by
any increase in the Adjusted US Dollar Eurodollar Rate or the Adjusted Canadian
Dollar Eurodollar Rate; provided that if such Lender Party fails to give notice
to Canadian Borrowers of any additional costs within ninety (90) days after it
has actual knowledge thereof, such Lender Party shall not be entitled to
compensation for such additional costs incurred more than ninety (90) days prior
to the date on which notice is given by such Lender Party.
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(c Each Lender Party shall promptly notify Canadian Borrowers and Canadian
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Lender Party to compensation pursuant to this Section
and will designate a different Applicable Lending Office if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the judgment of such Lender Party, be otherwise disadvantageous to it.
Any Lender Party claiming compensation under this Section shall furnish to
Canadian Borrowers and Canadian Agent a statement setting forth the additional
amount or amounts to be paid to it hereunder which shall be conclusive in the
absence of manifest error. In determining such amount, such Lender Party shall
act in good faith and may use any reasonable averaging and attribution methods.
(d If by reason of a Change in Law, either Canadian Borrower shall be
required to withhold and remit withholding taxes in respect of any principal,
interest, or other amount paid or payable by it to or for the account of any
Lender Party hereunder or under any other Canadian Loan Document (a "Withholding
Tax"), (i) the sum payable by the applicable Canadian Borrower shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 3.2) such
Lender Party receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the applicable Canadian Borrower shall make such
deductions, and (iii) the applicable Canadian Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable Law.
(e If any Overterm Canadian LC is issued for the account of either
Canadian Borrower and such Canadian Borrower is required by applicable Law to
withhold and remit Withholding Taxes in respect of:
(i) such Overterm Canadian LC,
(ii) any Matured Canadian LC Obligation and any Canadian Loan, the
proceeds of which (including indirectly by way of Conversion or
Continuation) were applied to any such Matured Canadian LC Obligation,
arising from such Overterm Canadian LC, or
(iii) any other Canadian Loan where such Withholding Taxes would not
have arisen if the terms of this Agreement did not permit the issuance of
Overterm Canadian LCs and Overterm Canadian Loans,
then:
(x) the sum payable by the applicable Canadian Borrower 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) the applicable Canadian Borrower shall make such deductions, and
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(z) the applicable Canadian Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable Law.
(f Except as provided in paragraphs (d) and (e) of this Section 3.2, no
Canadian Borrower shall be required to compensate any Lender Party for any
Withholding Taxes which such Canadian Borrower is required to withhold and remit
in respect of any principal, interest, or other amount paid or payable by it to
or for the account of any Lender Party hereunder or under any other Canadian
Loan Document.
Section 3.3. Limitation on Types of Canadian Loans. If on or prior to the
first day of any Eurodollar Interest Period for any Eurodollar Loan:
(a Canadian Agent determines (which determination shall be conclusive)
that by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the US Dollar Eurodollar Rate or
the Canadian Dollar Eurodollar Rate, as applicable, for such Eurodollar Interest
Period; or
(b the Canadian Required Lenders determine (which determination shall be
conclusive) and notify Canadian Agent that the Adjusted US Dollar Eurodollar
Rate or the Adjusted Canadian Dollar Eurodollar Rate, as applicable, will not
adequately and fairly reflect the cost to the Lenders of funding Eurodollar
Loans or for such Eurodollar Interest Period;
then Canadian Agent shall give Canadian Borrowers prompt notice thereof
specifying the relevant amounts or periods, and so long as such condition
remains in effect, the Lender Parties shall be under no obligation to make
additional Canadian Loans, continue Eurodollar Loans or convert Canadian Base
Rate Loans or Canadian Dollar Prime Rate Loans into Eurodollar Loans, and the
applicable Canadian Borrower shall, on the last day(s) of the then current
Eurodollar Interest Period(s) for the outstanding Eurodollar Loans, either
prepay such Canadian Loans or convert such Canadian Loans into Canadian Base
Rate Loans, Canadian Prime Rate Loans, or Bankers' Acceptances in accordance
with the terms of this Agreement.
Section 3.4. Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender Party or its
Applicable Lending Office to make, maintain, or fund Eurodollar Loans hereunder,
then such Lender Party shall promptly notify Canadian Borrowers thereof and such
Lender Party's obligation to make or continue Eurodollar Loans and to convert
BA's, Canadian Base Rate Loans, Canadian Prime Rate Loans, or Bankers'
Acceptances into Eurodollar Loans shall be suspended until such time as such
Lender Party may again make, maintain, and fund Eurodollar Loans (in which case
the provisions of Section 3.5 shall be applicable).
Section 3.5. Treatment of Affected Loans. If the obligation of any Lender
Party to make a particular Type of Loan or to continue, or to convert Canadian
Loans of any other Type into, Canadian Loans of a particular Type shall be
32
suspended pursuant to Sections 3.2 and 3.4 hereof (Canadian Loans of such Type
being herein called "Affected Loans" and such Type being herein called the
"Affected Type"), such Lender Party's Affected Loans shall be automatically
converted into Canadian Base Rate Loans with respect to US $ Loans or to
Canadian Prime Rate Loans with respect to C $ Loans on the last day(s) of the
then current Interest Period(s) for Affected Loans (or, in the case of a
Conversion required by Section 3.4 hereof, on such earlier date as such Lender
Party may specify to Canadian Borrowers with a copy to Canadian Agent) and,
unless and until such Lender Party gives notice as provided below that the
circumstances specified in Sections 3.2 or 3.4 hereof that gave rise to such
Conversion no longer exist:
(a to the extent that such Lender Party's Affected Loans have been so
converted, all payments and prepayments of principal that would otherwise be
applied to such Lender Party's Affected Loans shall be applied instead to its
Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable; and
(b all Canadian Loans that would otherwise be made or continued by such
Lender Party as Canadian Loans of the Affected Type shall be made or continued
instead as Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable,
and all Canadian Loans of such Lender Party that would otherwise be converted
into Canadian Loans of the Affected Type shall be converted instead into (or
shall remain as) Canadian Base Rate Loans or Canadian Prime Rate Loans, as
applicable.
If such Lender Party gives notice to Canadian Borrowers (with a copy to
Canadian Agent) that the circumstances specified in Section 3.2 or 3.4 hereof
that gave rise to the Conversion of such Lender Party's Affected Loans pursuant
to this Section no longer exist (which such Lender Party agrees to do promptly
upon such circumstances ceasing to exist) at a time when Canadian Loans of the
Affected Type made by other Lender Parties are outstanding, such Lender Party's
Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable, shall be
automatically converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Canadian Loans of the Affected Type, to the
extent necessary so that, after giving effect thereto, all Canadian Loans held
by the Lender Parties holding Canadian Loans of the Affected Type and by such
Lender Party are held pro rata (as to principal amounts, Types, and Interest
Periods) in accordance with their Percentage Shares of the Canadian Maximum
Credit Amount.
Section 3.6. Compensation. Upon the request of any Lender Party, the
applicable Canadian Borrower shall pay to such Lender Party such amount or
amounts as shall be sufficient (in the reasonable opinion of such Lender Party)
to compensate it for any loss, cost, or expense (including loss of anticipated
profits) incurred by it as a result of:
(i) any payment, prepayment, or Conversion of a Canadian Loan by
such Canadian Borrower (other than a Canadian Base Rate Loan or a Canadian
Prime Rate Loan) for any reason, whether voluntary, mandatory, automatic,
by reason of acceleration, or otherwise, on a date other than the last day
of the Interest Period for such Loan; or
33
(ii) any failure by such Canadian Borrower for any reason
(including, without limitation, the failure of any condition precedent
specified in Article IV to be satisfied) to borrow, convert, continue, or
prepay a Canadian Loan by such Canadian Borrower (other than a Canadian
Base Rate Loan or a Canadian Prime Rate Loan) on the date for such
borrowing, Conversion, Continuation, or prepayment specified in the
relevant notice of borrowing, prepayment, Continuation, or Conversion
under this Agreement.
Section 3.7. Change of Applicable Lending Office. Each Lender Party agrees
that, upon the occurrence of any event giving rise to the operation of Sections
3.2 through 3.5 with respect to such Lender Party, it will, if requested by
Canadian Borrowers, use reasonable efforts (subject to overall policy
considerations of such Lender Party) to designate another Applicable Lending
Office, provided that such designation is made on such terms that such Lender
Party and its Applicable Lending Office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of any such section. Nothing in this section shall affect
or postpone any of the obligations of Canadian Borrowers or the rights of any
Lender Party provided in Sections 3.2 through 3.5.
Section 3.8. Replacement of Lenders. If any Lender Party seeks
reimbursement for increased costs under Sections 3.2 through 3.5, or if a
Canadian Borrower is required to increase any sum payable under Section 3.2(d),
then within ninety (90) days thereafter -- provided no Event of Default then
exists -- Canadian Borrowers shall have the right (unless such Lender Party
withdraws its request for additional compensation) to replace such Lender Party
by requiring such Lender Party to assign its Canadian Advances, Canadian Notes,
Canadian LC Obligations, US Loans, US Notes, US LC Obligations and its
commitments hereunder and under the US Agreement to an Eligible Assignee
reasonably acceptable to all Borrowers, provided that: all Obligations of
Borrowers owing to such Lender Party being replaced (including such increased
costs, but excluding principal and accrued interest on the Canadian Notes and
the US Notes being assigned) shall be paid in full to such Lender Party
concurrently with such assignment, and the replacement Eligible Assignee shall
purchase the foregoing by paying to such Lender Party a price equal to the
principal amount thereof plus accrued and unpaid interest thereon. In connection
with any such assignment Canadian Borrowers, Canadian Agent, US Borrower, US
Agent, such Lender Party and the replacement Eligible Assignee shall otherwise
comply with Section 10.6. Notwithstanding the foregoing rights of Canadian
Borrowers under this section, however, Canadian Borrowers may not replace any
Lender Party which seeks reimbursement for increased costs under Section 3.2
through 3.5, or to which Canadian Borrowers are required to increase any sums
payable under Section 3.2(d), unless Canadian Borrowers are at the same time
replacing all Lender Parties which are then seeking such compensation or to
which such sums payable must be increased. In connection with any such
replacement of a Lender Party, the applicable Canadian Borrower shall pay all
costs that would have been due to such Lender Party pursuant to Section 3.6 if
such Lender Party's Canadian Advances had been prepaid at the time of such
replacement.
Section 3.9. Other Taxes.
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(a) Each Canadian Borrower agrees to pay any and all present or future
stamp or documentary taxes and any other excise or property taxes or charges or
similar levies which arise from any payment made by such Canadian Borrower under
this Agreement or any other Canadian Loan Document or from the execution or
delivery of, or otherwise with respect to, this Agreement or any other Canadian
Loan Document (hereinafter referred to as "Other Taxes").
(b) Each Canadian Borrower hereby agrees to indemnify each Lender Party
for the full amount of Other Taxes (including, without limitation, any Other
Taxes imposed or asserted by any jurisdiction on amounts payable by such
Canadian Borrower under this section) paid by such Lender Party or Canadian
Agent (as the case may be) and any liability (including penalties, interest, and
expenses) arising therefrom or with respect thereto.
(c) If either Canadian Borrower is required to pay additional amounts to
or for the account of any Lender Party pursuant to this Section 3.9, then such
Lender Party will agree to use reasonable efforts to change the jurisdiction of
its Applicable Lending Office so as to eliminate or reduce any such additional
payment which may thereafter accrue if such change, in the judgment of such
Lender Party, is not otherwise disadvantageous to such Lender Party.
(d) If a Lender Party is reimbursed for an amount paid by either Canadian
Borrower pursuant to this Section 3.9, it shall promptly return such amount to
such Canadian Borrower.
(e) Within thirty (30) days after the date of any payment of Other Taxes,
the applicable Canadian Borrower shall furnish to Canadian Agent the original or
a certified copy of a receipt evidencing such payment.
(f) Without prejudice to the survival of any other agreement of Canadian
Borrowers hereunder, the agreements and obligations of Canadian Borrowers
contained in this section shall survive the termination of this Agreement and
the payment in full of the Canadian Notes.
Section 3.10. Currency Conversion and Currency Indemnity.
(a) Canadian Borrowers shall make payment relative to any Obligation in
the currency (the "Agreed Currency") in which the Obligation was incurred. If
any payment is received on account of any Obligation in any currency (the "Other
Currency") other than the Agreed Currency (whether voluntarily, pursuant to any
Conversion of a Canadian Advance or pursuant to an order or judgment or the
enforcement thereof or the realization of any security or the liquidation of
such Canadian Borrower or otherwise howsoever), such payment shall constitute a
discharge of the liability of a Canadian Borrower hereunder and under the other
Canadian Loan Documents in respect of such Obligation only to the extent of the
amount of the Agreed Currency which the relevant Lender Parties are able to
purchase with the amount of the Other Currency received by it on the Business
Day next following such receipt in accordance with its normal procedures and
after deducting any premium and costs of exchange.
35
(b) If, for the purpose of obtaining or enforcing judgment in any court in
any jurisdiction, it becomes necessary to convert into a particular currency
(the "Judgment Currency") any amount due in the Agreed Currency then the
conversion shall be made on the basis of the rate of exchange prevailing on the
next Business Day following the date such judgment is given and in any event the
applicable Canadian Borrower shall be obligated to pay the Lender Parties any
deficiency in accordance with Section 3.10(c). For the foregoing purposes "rate
of exchange" means the rate at which the relevant Lender Parties, as applicable,
in accordance with their normal banking procedures are able on the relevant date
to purchase the Agreed Currency with the Judgment Currency after deducting any
premium and costs of exchange.
(c) If any Lender Party receives any payment or payments on account of the
liability of either Canadian Borrower hereunder pursuant to any judgment or
order in any Other Currency, and the amount of the Agreed Currency which the
relevant Lender Party is able to purchase on the Business Day next following
such receipt with the proceeds of such payment or payments in accordance with
its normal procedures and after deducting any premiums and costs of exchange is
less than the amount of the Agreed Currency due in respect of such Obligations
immediately prior to such judgment or order, then such Canadian Borrower on
demand shall, and such Canadian Borrower hereby agrees to, indemnify and save
such Lender Party harmless from and against any loss, cost or expense arising
out of or in connection with such deficiency. The agreement of indemnity
provided for in this Section 3.10(c) shall constitute an obligation separate and
independent from all other obligations contained in this Agreement, shall give
rise to a separate and independent cause of action, shall apply irrespective of
any indulgence granted by the Lender Parties or any of them from time to time,
and shall continue in full force and effect notwithstanding any judgment or
order for a liquidated sum in respect of an amount due hereunder or under any
judgment or order.
ARTICLE IV - Conditions Precedent to Advances
Section 4.1. Documents to be Delivered. No Lender has any obligation to
make its first Canadian Advance, and Canadian LC Issuer has no obligation to
issue the first Letter of Credit, unless Canadian Agent shall have received all
of the following, duly executed and delivered and in form, substance and date
satisfactory to Canadian Agent:
(a) This Agreement and any other documents that Lenders are to execute in
connection herewith.
(b) Each Canadian Note.
(c) Guaranty of each Canadian Guarantor.
(d) Certain certificates of Canadian Borrowers including:
36
(i) An "Omnibus Certificate" of the Secretary or Assistant Secretary
and of the Chairman of the Board, President, or Vice President - Finance
of each Canadian Borrower, which shall contain the names and signatures of
the officers of such Canadian Borrower authorized to execute Canadian Loan
Documents and which shall certify to the truth, correctness and
completeness of the following exhibits attached thereto: a copy of
resolutions duly adopted by the Board of Directors of such Canadian
Borrower and in full force and effect at the time this Agreement is
entered into, authorizing the execution of this Agreement and the other
Canadian Loan Documents delivered or to be delivered in connection
herewith and the consummation of the transactions contemplated herein and
therein, a copy of the charter documents of such Canadian Borrower and all
amendments thereto, certified by the appropriate official of its
jurisdiction of organization, and a copy of any bylaws of such Canadian
Borrower; and
(ii) A "Compliance Certificate" of the Chairman of the Board or President
and of the Vice President - Finance of each Canadian Borrower, of even date with
such Canadian Loan or such Letter of Credit, in which such officers certify to
the satisfaction of the conditions set out in subsections (a) and (b) of Section
4.3.
(e) Certificate (or certificates) of the due formation, valid existence
and good standing of each Canadian Borrower in its jurisdiction of organization,
issued by the appropriate official of such jurisdiction.
(f) Documents similar to those specified in subsections (d)(i) and (ii)
above with respect to each Canadian Guarantor.
(g) Favorable opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for Restricted
Persons, substantially in the form set forth in Exhibit E-1 and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Stirling Scales, counsel for Devon Financing ULC, substantially in the form set
forth in Exhibit E-2, and a favorable opinion of Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
covering the matters requested by Canadian Agent.
(h) The Initial Financial Statements.
Section 4.2. Additional Conditions Precedent to First Canadian Loan or
First Letter of Credit. No Lender has any obligation to make its first Canadian
Loan, and Canadian LC Issuer has no obligation to issue the first Letter of
Credit, unless on the date thereof:
(a) All commitment, facility, agency, legal and other fees required to be
paid or reimbursed to any Lender pursuant to any Canadian Loan Documents or any
commitment agreement heretofore entered into shall have been paid.
(b) No event which would reasonably be expected to have a Material Adverse
Effect shall have occurred since the date of the most recent Initial Financial
Statements.
(c) US Borrower shall have certified that, to the knowledge of the US
Borrower, no Restricted Person has any outstanding liabilities (determined in
accordance with GAAP) which
37
are, in the aggregate, material to the consolidated financial condition of the
US Borrower and its consolidated subsidiaries, taken as a whole, and which are
not disclosed in the Initial Financial Statements, the Disclosure Schedule or
reports, statements, schedules and other information included in filings made by
the US Borrower with the Securities and Exchange Commission on or prior to May
15, 2002 or otherwise to the US Agent and/or the US Lenders.
(d) Contemporaneously with the making of the first Canadian Loan or the
issuance of the first Letter of Credit, the Indebtedness outstanding under the
Existing US Agreement shall be refinanced under the US Agreement.
(e) All legal matters relating to the Canadian Loan Documents and the
consummation of the transactions contemplated thereby shall be satisfactory to
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., US counsel to Canadian Agent, and Blake, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, Canadian counsel to Canadian Agent.
Section 4.3. Additional Conditions Precedent to all Canadian Advances and
Letters of Credit. No Lender has any obligation to make any Canadian Loan
(including its first), and Canadian LC Issuer has no obligation to issue any
Letter of Credit (including its first), unless the following conditions
precedent have been satisfied:
(a) All representations and warranties made by any Restricted Person in
any Canadian Loan Document shall be true on and as of the date of such Canadian
Loan or the date of issuance of such Letter of Credit (except to the extent that
the facts upon which such representations are based have been changed by the
extension of credit hereunder) as if such representations and warranties had
been made as of the date of such Canadian Loan or the date of issuance of such
Letter of Credit.
(b) No Default shall exist at the date of such Canadian Loan or the date
of issuance of such Letter of Credit.
ARTICLE V - Representations and Warranties
To confirm each Lender's understanding concerning Restricted Persons and
Restricted Persons' businesses, properties and obligations and to induce each
Lender to enter into this Agreement and to extend credit hereunder, each
Canadian Borrower represents and warrants to each Lender that:
Section 5.1. No Default. No event has occurred and is continuing which
constitutes a Default.
Section 5.2. Organization and Good Standing. Each Canadian Borrower and
each of the Material Subsidiaries of Canadian Borrowers is duly organized,
validly existing and in good standing under the Laws of its jurisdiction of
38
organization, having all powers required to carry on its business and enter into
and carry out the transactions contemplated hereby. Each Canadian Borrower and
each of the Material Subsidiaries of Canadian Borrowers is duly qualified, in
good standing, and authorized to do business in all other jurisdictions within
Canada wherein the character of the properties owned or held by it or the nature
of the business transacted by it makes such qualification necessary except where
failure to so qualify would not have a Material Adverse Effect. Each Canadian
Borrower and each of the Material Subsidiaries of Canadian Borrowers has taken
all actions and procedures customarily taken in order to enter, for the purpose
of conducting business or owning property, each jurisdiction outside Canada
wherein the character of the properties owned or held by it or the nature of the
business transacted by it makes such actions and procedures desirable except
where failure to so qualify would not have a Material Adverse Effect.
Section 5.3. Authorization. Each Canadian Borrower has duly taken all
action necessary to authorize the execution and delivery by it of the Canadian
Loan Documents to which it is a party and to authorize the consummation of the
transactions contemplated thereby and the performance of its obligations
thereunder. Each Canadian Borrower is duly authorized to borrow funds hereunder.
Section 5.4. No Conflicts or Consents. The execution and delivery by each
Canadian Borrower and each Subsidiary of a Canadian Borrower that is a
Restricted Person of the Canadian Loan Documents to which each is a party, the
performance by each of its obligations under such Canadian Loan Documents, and
the consummation of the transactions contemplated by the various Canadian Loan
Documents, do not and will not (i) conflict with any provision of (A) any Law,
(B) the organizational documents or any unanimous shareholders agreement of any
Restricted Person, or (C) any agreement, judgment, license, order or permit
applicable to or binding upon any Restricted Person unless such conflict would
not reasonably be expected to have a Material Adverse Effect, or (ii) result in
the acceleration of any Indebtedness owed by any Restricted Person which would
reasonably be expected to have a Material Adverse Effect, or (iii) result in or
require the creation of any Lien upon any assets or properties of any Restricted
Person which would reasonably be expected to have a Material Adverse Effect,
except as expressly contemplated or permitted in the Canadian Loan Documents.
Except as expressly contemplated in the Canadian 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 Restricted Person of any Canadian Loan Document or to
consummate any transactions contemplated by the Canadian Loan Documents, unless
failure to obtain such consent would not reasonably be expected to have a
Material Adverse Effect.
Section 5.5.Enforceable Obligations. This Agreement is, and the other
Canadian Loan Documents when duly executed and delivered will be, legal, valid
and binding obligations of each Restricted Person which is a party hereto or
thereto, enforceable in accordance with their terms except as such enforcement
may be limited by bankruptcy, insolvency or similar Laws of general application
relating to the enforcement of creditors' rights.
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Section 5.6. Full Disclosure. No certificate, statement or other
information delivered herewith or heretofore by any Canadian Borrower or any
Subsidiary of a Canadian Borrower that is a Restricted Person to any Lender in
connection with the negotiation of this Agreement or in connection with any
transaction contemplated hereby contains any untrue statement of a material fact
or omits to state any material fact known to any such Person (other than
industry-wide risks normally associated with the types of businesses conducted
by Restricted Persons) necessary to make the statements contained herein or
therein not misleading as of the date made or deemed made. There is no fact
known to any such Person (other than industry-wide risks normally associated
with the types of businesses conducted by Restricted Persons) that has not been
disclosed to each Lender in writing which would reasonably be expected to have a
Material Adverse Effect.
Section 5.7. Litigation. Except as disclosed in the Initial Financial
Statements, in the financial statements delivered to each Lender Party pursuant
to Section 6.2, in the Disclosure Schedule or in a Disclosure Report, there are
no actions, suits or legal, equitable, arbitrative or administrative proceedings
pending, or to the knowledge of any Canadian Borrower threatened, against any
Canadian Borrower or any Subsidiary of a Canadian Borrower that is a Restricted
Person before any Tribunal which would reasonably be expected to have a Material
Adverse Effect, and there are no outstanding judgments, injunctions, writs,
rulings or orders by any such Tribunal against any such Person which would
reasonably be expected to have a Material Adverse Effect.
Section 5.8. Environmental and Other Laws. Except as disclosed in the
Disclosure Schedule: (a) Canadian Borrowers and each Subsidiary of a Canadian
Borrower that is a Restricted Person are conducting their businesses in material
compliance with all applicable Laws, including Environmental Laws, and have and
are in compliance with all licenses and permits required under any such Laws,
unless failure to so comply would not reasonably be expected to have a Material
Adverse Effect; (b) none of the operations or properties of any Canadian
Borrowers and each Subsidiary of a Canadian Borrower that is a Restricted Person
is the subject of federal, provincial or local investigation evaluating whether
any material remedial action is needed to respond to a release of any Hazardous
Materials into the environment or to the improper storage or disposal (including
storage or disposal at offsite locations) of any Hazardous Materials, unless
such remedial action would not reasonably be expected to have a Material Adverse
Effect; and (c) neither any Canadian Borrower nor any Subsidiary of a Canadian
Borrower that is a Restricted Person (and to the best knowledge of Canadian
Borrowers, no other Person) has filed any notice under any Law indicating that
any such Person is responsible for the improper release into the environment, or
the improper storage or disposal, of any material amount of any Hazardous
Materials or that any Hazardous Materials have been improperly released, or are
improperly stored or disposed of, upon any property of any such Person, unless
such failure to so comply would not reasonably be expected to have a Material
Adverse Effect.
Section 5.9. Canadian Borrowers' Subsidiaries. Neither Canadian Borrower
presently has any Material Subsidiary except those listed in the Disclosure
Schedule or in a Disclosure Report (it being understood that inclusion of a
40
Subsidiary on the Disclosure Schedule does not mean that such Subsidiary is a
Material Subsidiary). Each Canadian Borrower owns, directly or indirectly, the
equity interest in each of its Material Subsidiaries which is indicated in the
Disclosure Schedule or in a Disclosure Report.
Section 5.10. Title to Properties; Licenses. Each Canadian Borrower and
each Subsidiary of a Canadian Borrower that is a Restricted Person has good and
defensible title to all of its material properties and assets, free and clear of
all Liens other than Permitted Liens and of all impediments to the use of such
properties and assets in such Restricted Person's business except to the extent
failure to have such title would not have a Material Adverse Effect. Each
Canadian Borrower and each Subsidiary of a Canadian Borrower that is a
Restricted Person possesses all licenses, permits, franchises, patents,
copyrights, trademarks and trade names, and other intellectual property (or
otherwise possesses the right to use such intellectual property) which are
necessary to carry out its business as presently conducted and as presently
proposed to be conducted hereafter except to the extent failure to possess such
licenses, permits, franchises, and intellectual property would not have a
Material Adverse Effect, and no such Restricted Person is in violation in any
material respect of the terms under which it possesses such intellectual
property or the right to use such intellectual property except to the extent any
such violation would not have a Material Adverse Effect.
Section 5.11. Solvency. Upon giving effect to the issuance of the Canadian
Notes, the execution of the Canadian Loan Documents by Canadian Borrowers and
the consummation of the transactions contemplated hereby, each Canadian Borrower
will be solvent (as such term is used in applicable bankruptcy, liquidation,
receivership, insolvency or similar Laws).
ARTICLE VI - Affirmative Covenants of Canadian Borrowers
To conform with the terms and conditions under which each Lender is
willing to have credit outstanding to each Canadian Borrower, and to induce each
Lender to enter into this Agreement and extend credit hereunder, each Canadian
Borrower warrants, covenants and agrees that until the full and final payment of
the Canadian Obligations and the termination of this Agreement, unless Canadian
Required Lenders have previously agreed otherwise:
Section 6.1.Payment and Performance. Each Canadian Borrower will pay all
amounts due by it under the Canadian Loan Documents in accordance with the terms
thereof and will observe, perform and comply with every covenant, term and
condition expressed or implied in the Canadian Loan Documents to be binding upon
it. Each Canadian Borrower will cause each of its Subsidiaries which is a
Restricted Person to observe, perform and comply with every such term, covenant
and condition in any Loan Document.
Section 6.2. Books, Financial Statements and Reports. Each Canadian
Borrower will at all times maintain full and
41
accurate books of account and records. Each Canadian Borrower will maintain and
will cause its Subsidiaries to maintain a standard system of accounting, will
maintain its Fiscal Year, and will furnish (or will cause to be furnished) the
following statements and reports to each Lender Party at Canadian Borrowers'
expense:
(a) As soon as available, and in any event within ninety (90) days after
the end of each Fiscal Year, complete Consolidated financial statements of US
Borrower together with all notes thereto, prepared in reasonable detail in
accordance with US GAAP, together with an unqualified opinion, based on an audit
using generally accepted auditing standards, by KPMG Peat Marwick L.L.P., or
other independent certified public accountants selected by US Borrower and
acceptable to US Agent, stating that such Consolidated financial statements have
been so prepared. These financial statements shall contain a Consolidated
balance sheet as of the end of such Fiscal Year and Consolidated statements of
earnings, of cash flows, and of changes in owners' equity for such Fiscal Year,
each setting forth in comparative form the corresponding figures for the
preceding Fiscal Year. In addition, within ninety (90) days after the end of
each Fiscal Year each Canadian Borrower will furnish to Canadian Agent and each
Lender a certificate in the form of Exhibit D signed by the President, Senior
Vice President - Finance, Treasurer or Vice President - Accounting of US
Borrower and Canadian Borrowers, stating that such financial statements are
accurate and complete, stating that such Person has reviewed the Canadian Loan
Documents, containing all calculations required to be made to show compliance or
non-compliance with the provisions of Section 7.7, and further stating that
there is no condition or event at the end of such Fiscal Year or at the time of
such certificate which constitutes a Default and specifying the nature and
period of existence of any such condition or event.
(b) As soon as available, and in any event within forty-five (45) days
after the end of each Fiscal Quarter, US Borrower's Consolidated and
consolidating balance sheet and income statement as of the end of such Fiscal
Quarter and a Consolidated statement of cash flows for the period from the
beginning of the then current Fiscal Year to the end of such Fiscal Quarter, all
in reasonable detail and prepared in accordance with US GAAP, subject to changes
resulting from normal year-end adjustments. In addition each Canadian Borrower
will, together with each such set of financial statements, furnish a certificate
in the form of Exhibit D signed by the President, Senior Vice President -
Finance, Treasurer or Vice President - Accounting of such US Borrower stating
that such financial statements are accurate and complete (subject to normal
year-end adjustments), stating that such Person has reviewed the Canadian Loan
Documents, containing all calculations required to be made to show compliance or
non-compliance with the provisions of Section 7.7 and further stating that there
is no condition or event at the end of such Fiscal Quarter or at the time of
such certificate which constitutes a Default and specifying the nature and
period of existence of any such condition or event.
(c) Promptly upon their becoming available, copies of all financial
statements, reports, notices and proxy statements sent by US Borrower or any of
its Subsidiaries that is a Restricted Person to its shareholders and all
registration statements, prospectuses, periodic reports and other statements and
schedules filed by any such Person with any exchange, any securities commission
or any similar Governmental Authority, including any information or estimates
with respect to US Borrower's oil and gas business (including its exploration,
development and production activities)
42
which are required to be furnished in such Canadian Borrower's annual report
pursuant to securities legislation or the rules, policies and requirements of
any Governmental Authority.
Section 6.3. Other Information and Inspections. Each Canadian Borrower and
each Subsidiary of a Canadian Borrower that is a Restricted Person will furnish
to each Lender any information which Canadian Agent may from time to time
reasonably request concerning any covenant, provision or condition of the Loan
Documents or any matter in connection with such Persons' businesses and
operations. Each Canadian Borrower and each Subsidiary of a Canadian Borrower
that is a Restricted Person will permit representatives appointed by Canadian
Agent (including independent accountants, auditors, agents, lawyers, appraisers
and any other Persons) to visit and inspect upon prior written notice during
normal business hours any of such Restricted Person's property, including its
books of account, other books and records, and any facilities or other business
assets, and to make extra copies therefrom and photocopies and photographs
thereof, and to write down and record any information such representatives
obtain, and each Canadian Borrower and each Subsidiary of a Canadian Borrower
that is a Restricted Person shall permit Canadian Agent or its representatives
to investigate and verify the accuracy of the information furnished to Canadian
Agent or any Lender in connection with the Loan Documents and to discuss all
such matters with its officers, employees and representatives.
Section 6.4. Notice of Material Events. Canadian Borrowers will promptly
notify each Lender in writing, stating that such notice is being given pursuant
to this Agreement, of:
(a) the occurrence of any event which would have a Material Adverse
Effect,
(b) the occurrence of any Default,
(c) the acceleration of the maturity of any Indebtedness owed by any of
Canadian Borrowers or any of their Subsidiaries that are Restricted Persons
having a principal balance of more than US $150,000,000, or of any default by
any such Person under any indenture, mortgage, agreement, contract or other
instrument to which any of them is a party or by which any of them or any of
their properties is bound, if such default would have a Material Adverse Effect,
(d) the occurrence of any Termination Event which could reasonably be
expected to cause (i) the total amount of withdrawal liability that would be
incurred by all ERISA Affiliates upon their complete withdrawal from all
Multiemployer Plans to exceed US $250,000,000, or (ii) the aggregate Liabilities
of the ERISA Affiliates to ERISA Plans to exceed $250,000,000,
(e) any claim of US $250,000,000 or more, any notice of potential
liability under any Environmental Laws which might exceed such amount, or any
other material adverse claim asserted against any of Canadian Borrowers or any
of their Subsidiaries that are Restricted Persons or with respect to any such
Person's properties, and
43
(f) the filing of any suit or proceeding against any Canadian Borrowers or
any of their Subsidiaries that are Restricted Person in which an adverse
decision would reasonably be expected to have a Material Adverse Effect.
Section 6.5. Maintenance of Properties. Each Canadian Borrower and each
Subsidiary of a Canadian Borrower that is a Restricted Person will maintain,
preserve, protect, and keep all property used or useful in the conduct of its
business in good condition, and will from time to time make all repairs,
renewals and replacements needed to enable the business and operations carried
on in connection therewith to be promptly and advantageously conducted at all
times except to the extent failure to do so would not reasonably be expected to
have a Material Adverse Effect.
Section 6.6. Maintenance of Existence and Qualifications. Each Canadian
Borrower and each Subsidiary of a Canadian Borrower that is a Restricted Person
will maintain and preserve its existence and its rights and franchises in full
force and effect and will qualify to do business in all states or jurisdictions
where required by applicable Law, except where the failure so to qualify will
not have a Material Adverse Effect.
Section 6.7. Payment of Trade Liabilities, Taxes, etc. Each Canadian
Borrower and each Subsidiary of a Canadian Borrower that is a Restricted Person
will (a) timely file all required tax returns; (b) timely pay all taxes,
assessments, and other governmental charges or levies imposed upon it or upon
its income, profits or property; and (c) maintain appropriate accruals and
reserves for all of the foregoing in accordance with US GAAP. Such Restricted
Person may, however, delay paying or discharging any of the foregoing so long as
it is in good faith contesting the validity thereof by appropriate proceedings
and has set aside on its books adequate reserves therefor.
Section 6.8. Insurance. Each Canadian Borrower and each Subsidiary of a
Canadian Borrower that is a Restricted Person will keep or cause to be kept
insured in accordance with industry standards by financially sound and reputable
insurers, its surface equipment and other property of a character usually
insured by similar Persons engaged in the same or similar businesses.
Section 6.9. Performance on Canadian Borrowers' Behalf. If either Canadian
Borrower or any Subsidiary of a Canadian Borrower that is a Restricted Person
fails to pay any taxes, insurance premiums, expenses, lawyers' fees or other
amounts it is required to pay under any Canadian Loan Document, Canadian Agent
may pay the same, and shall use its best efforts to give at least five (5)
Business Days notice to Canadian Borrowers prior to making any such payment;
provided, however, that any failure by Canadian Agent to so notify Canadian
Borrowers shall not limit or otherwise impair Canadian Agent's ability to make
any such payment. Northstar Energy shall immediately reimburse Canadian Agent
for any such payments and each amount paid by Canadian Agent shall constitute a
Canadian Obligation owed hereunder which is due and payable on the date such
amount is paid by Canadian Agent.
44
Section 6.10. Interest. Each Canadian Borrower hereby promises to each
Lender Party to pay interest at the Default Rate applicable to Canadian Base
Rate Loans on all Canadian Obligations (including Canadian Obligations to pay
fees or to reimburse or indemnify any Lender) which such Canadian Borrower has
in this Agreement promised to pay to such Lender Party and which are not paid
when due. Such interest shall accrue from the date such Canadian Obligations
become due until they are paid.
Section 6.11. Compliance with Law. Each Canadian Borrower and each
Subsidiary of a Canadian Borrower that is a Restricted Person will conduct its
business and affairs in compliance with all Laws applicable thereto except to
the extent failure to do so would not reasonably be expected to have a Material
Adverse Effect.
Section 6.12. Environmental Matters.
(a) Each Canadian Borrower and each Subsidiary of a Canadian Borrower that
is a Restricted Person will comply in all material respects with all
Environmental Laws now or hereafter applicable to such Restricted Person, as
well as all contractual obligations and agreements with respect to environmental
remediation or other environmental matters, and shall obtain, at or prior to the
time required by applicable Environmental Laws, all environmental, health and
safety permits, licenses and other authorizations necessary for its operations
and will maintain such authorizations in full force and effect, unless such
failure to so comply would not reasonably be expected to have a Material Adverse
Effect.
(b) Each Canadian Borrower will promptly furnish to Canadian Agent all
written notices of violation, orders, claims, citations, complaints, penalty
assessments, suits or other proceedings received by such Canadian Borrower, or
of which it has notice, pending or threatened against such Canadian Borrower, by
any Governmental Authority with respect to any alleged violation of or
non-compliance with any Environmental Laws or any permits, licenses or
authorizations in connection with its ownership or use of its properties or the
operation of its business which involve a potential liability or claim in excess
of US $250,000,000.
Section 6.13. Bank Accounts; Offset. Each Canadian Borrower hereby agrees
that each Canadian Lender shall have the right to offset (which shall be in
addition to all other interests, liens, and rights of any Lender at common Law,
under the Loan Documents, or otherwise) (a) any and all moneys, securities or
other property (and the proceeds therefrom) of such Canadian Borrower now or
hereafter held or received by or in transit to any Canadian Lender for the
account of such Canadian Borrower, (b) any and all deposits (general or special,
time or demand, provisional or final) of such Canadian Borrower with any
Canadian Lender, (c) any other credits and balances of such Canadian Borrower at
any time existing against any Canadian Lender, including claims under
certificates of deposit, and (d) any indebtedness owed or payable by any Lender
to such Canadian Borrower at any time against Canadian Obligations owing by such
Canadian Borrower due to it that have not been paid when due. At any time and
from time to time after the occurrence of any Event of Default and during the
continuance thereof, each Lender is hereby authorized to offset against the
Canadian
45
Obligations then due and payable to it by such Canadian Borrower (in either case
without notice to such Canadian Borrower), any and all items hereinabove
referred to. To the extent that any Canadian Borrower has accounts designated as
royalty or joint interest owner accounts, the foregoing right of offset shall
not extend to funds in such accounts which belong to, or otherwise arise from
payments to such Canadian Borrower for the account of, third party royalty or
joint interest owners.
ARTICLE VII - Negative Covenants of Canadian Borrowers
To conform with the terms and conditions under which each Lender is
willing to have credit outstanding to each Canadian Borrower, and to induce each
Lender to enter into this Agreement and make the Canadian Loans, each Canadian
Borrower warrants, covenants and agrees that until the full and final payment of
the Canadian Obligations and the termination of this Agreement, unless Canadian
Required Lenders have previously agreed otherwise:
Section 7.1. Indebtedness. Neither any Canadian Borrower nor any
Subsidiary of a Canadian Borrower that is a Restricted Subsidiary will in any
manner owe or be liable for Indebtedness except:
(a) the Canadian Obligations.
(b) capital lease obligations (excluding oil, gas or mineral leases)
entered into in the ordinary course of such Restricted Person's business in
arm's length transactions at competitive market rates under competitive terms
and conditions in all respects, provided that such capital lease obligations
required to be paid in any Fiscal Year do not in the aggregate exceed US
$50,000,000 for all Restricted Subsidiaries, whether or not Subsidiaries of any
Canadian Borrower.
(c) unsecured Liabilities owed among the Restricted Persons; provided that
Liabilities owed by any Restricted Subsidiary (other than Canadian Borrowers) to
US Borrower may be secured by any and all assets of such Restricted Subsidiary.
(d) guaranties by one Restricted Person of Liabilities owed by another
Restricted Person, if such Liabilities either (i) are not Indebtedness, or (ii)
are allowed under subsections (a), (b) or (c) of this Section 7.1.
(e) Indebtedness of the Restricted Persons for plugging and abandonment
bonds or for letters of credit issued by any Lender in place thereof which are
required by regulatory authorities in the area of operations, and Indebtedness
of the Restricted Persons for other bonds or letters of credit issued by any
Lender which are required by such regulatory authorities with respect to other
normal oil and gas operations.
(f) non-recourse Indebtedness as to which no Restricted Person (i)
provides any guaranty or credit support of any kind (including any undertaking,
guarantee, indemnity,
46
agreement or instrument that would constitute Indebtedness) or (ii) is directly
or indirectly liable (as a guarantor or otherwise); provided, that after giving
effect to such Indebtedness outstanding from time to time, US Borrower is not in
violation of Section 7.7.
(g) Indebtedness that is subordinated to the US Obligations and the
Canadian Obligations on terms acceptable to Canadian Required Lenders.
(h) Indebtedness in the approximate amount of C $3,459,000 owed to Indeck
Gas Supply Corporation by Northstar Energy pursuant to a Gas Sales and Purchase
Agreement dated as of March 9, 1989, as heretofore or hereafter amended from
time to time.
(i) Acquired Debt.
(j) Indebtedness under Hedging Contracts.
(k) Indebtedness relating to the surety bond and letter of credit
obligations (including replacements thereof) listed on Schedule 2 and
Indebtedness relating to the UNDRAWN amount of surety bonds and letters of
credit (exclusive of the surety bonds and letter of credit obligations listed on
Schedule 2 and replacements thereof) incurred in the ordinary course of business
not to exceed 2% of Consolidated Assets at any time.
(l) Indebtedness outstanding on the Closing Date or thereafter incurred
pursuant to funding commitments in existence on the Closing Date and listed in
Schedule 3 hereto, as the same may be amended, supplemented or modified from
time to time or extended, renewed, restructured, refinanced or replaced, so long
as no Restricted Subsidiary increases the aggregate principal amount thereof for
which such Restricted Subsidiary is then or may thereafter become liable.
(m) miscellaneous items of Indebtedness of all Restricted Persons (other
than US Borrower) not described in subsections (a) through (l) which do not in
the aggregate exceed US $400,000,000 in principal amount at any one time
outstanding.
Section 7.2. Limitation on Liens. Except for Permitted Liens, neither any
Canadian Borrower nor any Subsidiary of a Canadian Borrower that is a Restricted
Person will create, assume or permit to exist any Lien upon any of the
properties or assets which it now owns or hereafter acquires. Neither any
Canadian Borrower nor any Subsidiary of a Canadian Borrower that is a Restricted
Person will allow the filing or continued existence of any financing statement
describing as collateral any assets or property of such Restricted Person, other
than financing statements which describe only collateral subject to a Lien
permitted under this section and which name as secured party or lessor only the
holder of such Lien.
Section 7.3. Limitation on Mergers. Neither any Canadian Borrower nor any
Subsidiary of a Canadian Borrower that is a Restricted Person will merge,
amalgamate or consolidate with or into any other Person except that either
Canadian
47
Borrower or any Subsidiary of either Canadian Borrower which is a Restricted
Person may be merged, amalgamated or consolidated with or into (i) either
Canadian Borrower, (ii) any other Subsidiary of US Borrower, so long as the
surviving business entity arising from such merger, amalgamation or
consolidation is a Restricted Person; provided that if Devon Financing ULC is
merged, amalgamated or consolidated with or into any such Subsidiary of either
Canadian Borrower which is a Restricted Person, the surviving entity (if other
than Devon Financing ULC) shall execute and deliver to Canadian Agent a
guarantee on the same terms as the Devon Financing ULC Guaranties if unleSS at
the same time thereof the Devon Financing ULC Guaranties are or have not been
released or terminated in accordance with their terms, or (b) US Borrower, so
long as US Borrower is the continuing business entity.
Section 7.4. Limitation on Issuance of Securities by Subsidiaries of US
Borrower; Ownership of certain Restricted Subsidiaries by US Borrower.
(a) Neither any Canadian Borrower nor any Subsidiary of a Canadian
Borrower that is a Restricted Person will issue any additional shares of its
capital stock, additional partnership interests or other securities or any
options, warrants or other rights to acquire such additional shares, partnership
interests or other securities except to US Borrower or another Restricted Person
which is a wholly-owned direct or indirect Subsidiary of US Borrower unless (i)
such securities are being issued to acquire a business, directly or indirectly
through the use of the proceeds of such issuance, and (ii) such securities are
convertible into the common shares or similar securities of US Borrower and/or
can be redeemed in cash at the option of the Restricted Person that issued such
securities. In addition, (A) Northstar Energy may issue "Exchangeable Shares"
(as defined in the Articles of Amalgamation of Northstar Energy and in this
section called "Exchangeable Shares") upon the terms specified in the Articles
of Amalgamation of Northstar Energy as in effect on January 1, 2001, (B) Devon
Canada may issue exchangeable shares upon substantially the same terms as such
Exchangeable Shares, and (C) either Canadian Borrower may issue stock options to
its employees from time to time to acquire such Exchangeable Shares, provided
that such options are granted under a stock option plan of either Canadian
Borrower and/or US Borrower.
(b) US Borrower will at all times own, directly or indirectly, 100% of the
outstanding shares of common stock of Northstar Energy and Devon Canada.
Section 7.5. Transactions with Affiliates. Neither any Canadian Borrower
nor any Subsidiary of a Canadian Borrower that is a Restricted Person will
engage in any material transaction with any of its Affiliates on terms which are
less favorable in any material respect to it than those which would have been
obtainable at the time in arm's-length dealing with Persons other than such
Affiliates, provided that such restriction shall not apply to transactions among
such Restricted Persons that are wholly-owned, directly or indirectly, by US
Borrower.
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Section 7.6. Funded Debt to Total Capitalization. The ratio of US
Borrower's Consolidated Total Funded Debt to US Borrower's Total Capitalization
will not exceed (i) seventy percent (70%) at the end of any Fiscal Quarter
ending on or before June 30, 2002, or (ii) sixty-five percent (65%) at the end
of any Fiscal Quarter thereafter.
ARTICLE VIII - Events of Default and Remedies
Section 8.1. Events of Default. Each of the following events constitutes
an Event of Default under this Agreement:
(a) Any Restricted Person fails to pay any principal component of any
Canadian Obligation when due and payable or fails to pay any other Canadian
Obligation or LC Collateral within three (3) days after the date when due and
payable, whether at a date for the payment of a fixed installment or as a
contingent or other payment becomes due and payable or as a result of
acceleration or otherwise;
(b) Any "default" or "event of default" occurs under any Canadian Loan
Document which defines either such term, and the same is not remedied within the
applicable period of grace (if any) provided in such Loan Document;
(c) Any Restricted Person fails (other than as referred to in subsections
(a) or (b) above) to (i) duly comply with Section 1.10 or Section 7.4(b) of the
Canadian Agreement or (ii) duly observe, perform or comply with any other
covenant, agreement, condition or provision of any Canadian Loan Document, and
such failure remains unremedied for a period of thirty (30) days after notice of
such failure is given by Canadian Agent to Canadian Borrowers;
(d) Any representation or warranty previously, presently or hereafter made
in writing by or on behalf of any Restricted Person in connection with any
Canadian Loan Document shall prove to have been false or incorrect in any
material respect on any date on or as of which made; provided, that if such
falsity or lack of correctness is capable of being remedied or cured within a
30-day period, Canadian Borrowers shall (subject to the other provisions of this
Section 8.1) have a period of 30 days after written notice thereof has been
given to Canadian Borrowers by Canadian Agent within which to remedy or cure
such lack of correctness, or this Agreement, any Canadian Note, or the Guaranty
executed by any Canadian Guarantor is asserted to be or at any time ceases to be
valid, binding and enforceable in any material respect as warranted in Section
5.5 for any reason other than its release or subordination by Canadian Agent;
(e) Any Restricted Person fails to duly pay any Indebtedness in excess of
US $150,000,000 constituting principal or interest owed by it with respect to
borrowed money or money otherwise owed under any note, bond, or similar
instrument, or (ii) breaches or defaults in the performance of any agreement or
instrument by which any such Indebtedness is issued, evidenced, governed, or
secured, other than a breach or default described in clause (i) above, and any
such failure, breach or default results in the acceleration of such
Indebtedness; provided that
49
notwithstanding any provision of this subsection (e) to the contrary, to the
extent that the terms of any such agreement or instrument governing the sale,
pledge or disposal of Margin Stock or utilization of the proceeds of such
Indebtedness in connection therewith would result in such acceleration and in a
Default or an Event of Default under this Agreement, and would cause this
Agreement or any Canadian Loan to be subject to the margin requirements or any
other restriction under Reg U, then such acceleration shall not constitute a
Default or Event of Default under this subsection (e);
(f) Any Change of Control occurs;
(g) Any "Event of Default" occurs under the US Agreement; and
(h) Any Canadian Borrower, any Canadian Guarantor or any other Restricted
Person having assets with a book value of at least US $250,000,000:
(i) suffers the entry against it of a judgment, decree or order for
relief by a Tribunal of competent jurisdiction in an involuntary
proceeding commenced under any applicable bankruptcy, insolvency or other
similar Law of any jurisdiction now or hereafter in effect, including the
Bankruptcy and Insolvency Act (Canada) and the Companies' Creditors
Arrangement Act (Canada), as each are from time to time amended, or has
any such proceeding commenced against it which remains undismissed for a
period of thirty days; or
(ii) commences a voluntary case under any applicable bankruptcy,
insolvency or similar Law now or hereafter in effect, including the
Bankruptcy and Insolvency Act (Canada) and the Companies' Creditors
Arrangement Act (Canada), as each are from time to time amended; or
applies for or consents to the entry of an order for relief in an
involuntary case under any such Law; or makes a general assignment for the
benefit of creditors; or fails generally to pay (or admits in writing its
inability to pay) its debts as such debts become due; or takes corporate
or other action to authorize any of the foregoing; or
(iii) suffers the appointment of or taking possession by a receiver,
receiver-manager, liquidator, assignee, custodian, trustee, sequestrator
or similar official of all or a substantial part of its property in a
proceeding brought against or initiated by it, and such appointment or
taking possession is neither made ineffective nor discharged within thirty
days after the making thereof, or such appointment or taking possession is
at any time consented to, requested by, or acquiesced to by it; or
(iv) suffers the entry against it of a final judgment for the
payment of money in an amount that exceeds (x) the valid and collectible
insurance in respect thereof or (y) the amount of an indemnity with
respect thereto reasonably acceptable to the Required Lenders by US
$250,000,000 or more, unless the same is discharged within thirty days
after the date of entry thereof or an appeal or appropriate proceeding for
review thereof is taken within such period and a stay of execution pending
such appeal is obtained; or
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(v) suffers a levy of distress or execution or possession, or a writ
or warrant of attachment or any similar process to be issued by any
Tribunal against all or any part of its property having a book value of at
least US $250,000,000, and such writ or warrant of attachment or any
similar process is not stayed or released within thirty days after the
entry or levy thereof or after any stay is vacated or set aside.
Upon the occurrence of an Event of Default described in subsection (h)(i),
(h)(ii) or (h)(iii) of this section with respect to Canadian Borrowers, all of
the Canadian Obligations shall thereupon be immediately due and payable, without
demand, presentment, notice of demand or of dishonor and nonpayment, protest,
notice of protest, notice of intention to accelerate, declaration or notice of
acceleration, or any other notice or declaration of any kind, all of which are
hereby expressly waived by Canadian Borrowers and each Restricted Person who at
any time ratifies or approves this Agreement. Upon any such acceleration, any
obligation of any Lender to make any further Canadian Advances, any obligation
of Canadian LC Issuer to issue Letters of Credit hereunder, and any obligation
of Canadian Swing Lender to make any further Canadian Swing Loans shall be
permanently terminated. During the continuance of any other Event of Default,
Canadian Agent at any time and from time to time may (and upon written
instructions from Canadian Required Lenders, Canadian Agent shall), without
notice to Canadian Borrowers or any other Restricted Person, do either or both
of the following: (1) terminate any obligation of Lenders to make Canadian
Advances hereunder, any obligation of Canadian LC Issuer to issue Letters of
Credit hereunder, and any obligation of Canadian Swing Lender to make Canadian
Swing Loans hereunder, and (2) declare any or all of the Canadian Obligations
immediately due and payable, and all such Canadian Obligations shall thereupon
be immediately due and payable, without demand, presentment, notice of demand or
of dishonor and nonpayment, protest, notice of protest, notice of intention to
accelerate, declaration or notice of acceleration, or any other notice or
declaration of any kind, all of which are hereby expressly waived by Canadian
Borrowers and each Restricted Person who at any time ratifies or approves this
Agreement.
Section 8.2. Remedies. If any Event of Default shall occur and be
continuing, each Lender Party may protect and enforce its rights under the
Canadian Loan Documents by any appropriate proceedings, including proceedings
for specific performance of any covenant or agreement contained in any Canadian
Loan Document, and each Lender Party may enforce the payment of any Canadian
Obligations due it or enforce any other legal or equitable right which it may
have. All rights, remedies and powers conferred upon Lender Parties under the
Canadian Loan Documents shall be deemed cumulative and not exclusive of any
other rights, remedies or powers available under the Canadian Loan Documents or
at Law or in equity.
ARTICLE IX - Canadian Agent
Section 9.1. Appointment, Powers, and Immunities.
(a) Each Lender hereby irrevocably appoints and authorizes Canadian Agent
to act as its agent under this Agreement and the other Canadian Loan Documents
with such powers and
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discretion as are specifically delegated to Canadian Agent by the terms of this
Agreement and the other Canadian Loan Documents, together with such other powers
as are reasonably incidental thereto. The Agent-Related Persons: (i) shall not
have any duties or responsibilities except those expressly set forth in this
Agreement and shall not be trustees or fiduciaries for any Lender; (ii) shall
not be responsible to the Lenders for any recital, statement, representation, or
warranty (whether written or oral) made in or in connection with any Canadian
Loan Document or any certificate or other document referred to or provided for
in, or received by any of them under, any Canadian Loan Document, or for the
value, validity, effectiveness, genuineness, enforceability, or sufficiency of
any Canadian Loan Document, or any other document referred to or provided for
therein or for any failure by any Restricted Person or any other Person to
perform any of its obligations thereunder; (iii) shall not be responsible for or
have any duty to ascertain, inquire into, or verify the performance or
observance of any covenants or agreements by any Restricted Person or the
satisfaction of any condition or to inspect the property (including the books
and records) of any Restricted Person or any of its Subsidiaries or Affiliates
or for the failure of any Restricted Person or Lender Party to perform its
obligations under any Loan Document; (iv) shall not be required to initiate or
conduct any litigation or collection proceedings under any Loan Document; and
(v) shall not be responsible for any action taken or omitted to be taken by it
under or in connection with any Loan Document, except for its own gross
negligence or willful misconduct; provided, however, that no action taken in
accordance with the directions of the number of Lenders herein specified with
respect to a particular action shall be deemed to constitute gross negligence or
willful misconduct for purposes of this Section. Canadian Agent may employ
agents and attorneys-in-fact and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. Without limiting the generality of the foregoing sentence, the
use of the term "agent" herein and in the other Loan Documents with reference to
US Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable Law. Instead, such
term is used merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting
parties.
(b) US LC Issuer shall act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith until such
time (and except for so long) as the US Agent may agree at the request of the
Required Lenders to act for US LC Issuer with respect thereto; provided,
however, that US LC Issuer shall have all of the benefits and immunities (i)
provided to the US Agent in this Article IX with respect to any acts taken or
omissions suffered by US LC Issuer in connection with Letters of Credit issued
by it or proposed to be issued by it and the application and agreements for
letters of credit pertaining to the Letters of Credit as fully as if the term
"US Agent" as used in this Article IX included US LC Issuer with respect to such
acts or omissions, and (ii) as additionally provided herein with respect to US
LC Issuer.
Section 9.2. Reliance by Canadian Agent.
(a) Canadian Agent shall be entitled to rely upon any certification,
notice, instrument, writing, or other communication (including, without
limitation, any thereof by telephone or telecopy) believed by it to be genuine
and correct and to have been signed, sent or made by or on
52
behalf of the proper Person or Persons, and upon advice and statements of legal
counsel (including counsel for any Restricted Person), independent accountants,
and other experts selected by Canadian Agent. Canadian Agent may deem and treat
the payee of any Canadian Note as the holder thereof for all purposes hereof
unless and until Canadian Agent receives and accepts an Assignment and
Assumption executed in accordance with Section 10.6 hereof. Canadian Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the Canadian Required Lenders, Canadian Majority Lenders or all
Lenders, if required hereunder, and such request and any action taken or failure
to act pursuant thereto shall be binding upon all Lenders and participants.
Where this Agreement expressly permits or prohibits an action unless the
Canadian Required Lenders, Canadian Majority Lenders or all Lenders otherwise
determine, the Canadian Agent shall, and in all other instances, the Canadian
Agent may, but shall not be required to, initiate any solicitation for the
consent or a vote of the Lenders.
(b) For purposes of determining compliance with the conditions specified
in Section 4.01, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by Canadian Agent to such Lender for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to a Lender; provided, however,
that Canadian Agent shall not be required to take any action that exposes
Canadian Agent to personal liability or that is contrary to any Loan Document or
applicable Law or unless it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking any such action.
Section 9.3. Defaults. Canadian Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default or Event of Default unless
Canadian Agent has received written notice from a Lender or Canadian Borrowers
specifying such Default or Event of Default and stating that such notice is a
"Notice of Default". In the event that Canadian Agent receives such a notice of
the occurrence of a Default or Event of Default, Canadian Agent shall give
prompt notice thereof to the Lenders. Canadian Agent shall (subject to Section
9.1 hereof) take such action with respect to such Default or Event of Default as
shall reasonably be directed by the Canadian Required Lenders. Notwithstanding
the foregoing, unless and until Canadian Agent shall have received such
directions, Canadian Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interest of the Lenders.
Section 9.4. Rights as Lender. With respect to its Percentage Share of the
Canadian Maximum Credit Amount and the Canadian Loans made by it, Canadian Agent
(and any successor acting as Canadian Agent) in its capacity as a Lender
hereunder shall have the same rights and powers hereunder as any other Lender
and may exercise the same as though it were not acting as Canadian Agent, and
the term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include Canadian Agent in its individual capacity. Canadian Agent (and any
successor acting as Canadian Agent) and its Affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money to, make
Investments in, provide services to, and generally engage in any kind of
lending, trust, or other business with
53
any Restricted Person or any of its Subsidiaries or Affiliates as if it were not
acting as Canadian Agent, and Canadian Agent (and any successor acting as
Canadian Agent) and its Affiliates may accept fees and other consideration from
any Restricted Person or any of its Subsidiaries or Affiliates for services in
connection with this Agreement or otherwise without having to account for the
same to the Lenders.
Section 9.5. Indemnification. The Lenders agree to indemnify each
Agent-Related Person (to the extent not reimbursed under Section 10.4 hereof,
but without limiting the obligations of Canadian Borrowers under such section)
ratably in accordance with their respective Percentage Shares, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including legal fees), or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against Canadian
Agent (including by any Lender) in any way relating to or arising out of any
Canadian Loan Document or the transactions contemplated thereby or any action
taken or omitted by Canadian Agent under any Canadian Loan Document (INCLUDING
ANY OF THE FOREGOING ARISING FROM THE NEGLIGENCE OF CANADIAN AGENT); provided
that no Lender shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the Person to be indemnified,
and provided further that no action taken in accordance with the directions of
the number of Lenders herein specified with respect to a particular action shall
be deemed to constitute gross negligence or willful misconduct for purposes of
this Section. Without limitation of the foregoing, each Lender agrees to
reimburse Canadian Agent promptly upon demand for its ratable share of any costs
or expenses payable by Canadian Borrowers under Section 10.4, to the extent that
Canadian Agent is not promptly reimbursed for such costs and expenses by
Canadian Borrowers. The agreements contained in this section shall survive
payment in full of the Canadian Loans and all other amounts payable under this
Agreement.
Section 9.6. Non-Reliance on Canadian Agent and Other Lenders. Each Lender
agrees that it has, independently and without reliance on Canadian Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Canadian Borrowers and their
Subsidiaries and decision to enter into this Agreement and that it will,
independently and without reliance upon Canadian Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking or not taking
action under the Canadian Loan Documents. Except for notices, reports, and other
documents and information expressly required to be furnished to the Lenders by
Canadian Agent hereunder, Canadian Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition, or business of any Restricted
Person or any of its Subsidiaries or Affiliates that may come into the
possession of Canadian Agent or any of its Affiliates.
Section 9.7. Administrative Agent in its Individual Capacity. Bank of
America and its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with each
54
of the Restricted Persons and their respective Affiliates as though Bank of
America were not the Canadian Agent or the Canadian LC Issuer hereunder and
without notice to or consent of Lenders. Lenders acknowledge that, pursuant to
such activities, Bank of America or its Affiliates may receive information
regarding any Restricted Person or its Affiliates (including information that
may be subject to confidentiality obligations in favor of such Restricted Person
or such Affiliate) and acknowledge that the Canadian Agent shall be under no
obligation to provide such information to them. With respect to its Canadian
Loans, Bank of America shall have the same rights and powers under this
Agreement as any other Lender and may exercise such rights and powers as though
it were not the Canadian Agent or the Canadian LC Issuer, and the terms
"Canadian Lender", "Canadian Lenders", "Lender" and "Lenders" include Bank of
America in its individual capacity.
Section 9.8. Sharing of Set-Offs and Other Payments. Each Lender Party
agrees that if it shall, whether through the exercise of rights under Canadian
Loan Documents or rights of banker's lien, set off, or counterclaim against
Canadian Borrowers or otherwise, obtain payment of a portion of the aggregate
Canadian Obligations owed to it which, taking into account all distributions
made by Canadian Agent under Section 3.1, causes such Lender Party to have
received more than it would have received had such payment been received by
Canadian Agent and distributed pursuant to Section 3.1, then (a) it shall be
deemed to have simultaneously purchased and shall be obligated to purchase
interests in the Canadian Obligations as necessary to cause all Lender Parties
to share all payments as provided for in Section 3.1, and (b) such other
adjustments shall be made from time to time as shall be equitable to ensure that
Canadian Agent and all Lender Parties share all payments of Canadian Obligations
as provided in Section 3.1; provided, however, that nothing herein contained
shall in any way affect the right of any Lender Party to obtain payment (whether
by exercise of rights of banker's lien, set-off or counterclaim or otherwise) of
indebtedness other than the Canadian Obligations. Canadian Borrowers expressly
consent to the foregoing arrangements and agree that any holder of any such
interest may to the fullest extent permitted by Law exercise any and all rights
of banker's lien, set-off, or counterclaim as fully as if such holder were a
holder of the Canadian Obligations in the amount of such interest. If all or any
part of any funds transferred pursuant to this section is thereafter recovered
from the seller under this section which received the same, the purchase
provided for in this section shall be deemed to have been rescinded to the
extent of such recovery, together with interest, if any, if interest is required
pursuant to the order of a Tribunal order to be paid on account of the
possession of such funds prior to such recovery.
Section 9.9. Investments. Whenever Canadian Agent in good faith determines
that it is uncertain about how to distribute to Lender Parties any funds which
it has received, or whenever Canadian Agent in good faith determines that there
is any dispute among Lender Parties about how such funds should be distributed,
Canadian Agent may choose to defer distribution of the funds which are the
subject of such uncertainty or dispute. If Canadian Agent in good faith believes
that the uncertainty or dispute will not be promptly resolved, or if Canadian
Agent is otherwise required to invest funds pending distribution to Lender
Parties, Canadian Agent shall invest such funds pending distribution; all
interest on any such Investment shall be distributed upon the distribution of
such Investment and in the same
55
proportion and to the same Persons as such Investment. All moneys received by
Canadian Agent for distribution to Lender Parties (other than to the Person who
is Canadian Agent in its separate capacity as a Lender Party) shall be held by
Canadian Agent pending such distribution solely as Canadian Agent for such
Lender Parties, and Canadian Agent shall have no equitable title to any portion
thereof.
Section 9.10. Benefit of Article IX. The provisions of this Article (other
than the following Section 9.11) are intended solely for the benefit of Lender
Parties, and no Restricted Person shall be entitled to rely on any such
provision or assert any such provision in a claim or defense against any Lender.
Lender Parties may waive or amend such provisions as they desire without any
notice to or consent of Canadian Borrowers or any Restricted Person.
Section 9.11. Resignation. Canadian Agent may resign at any time by giving
written notice thereof to Lenders and Canadian Borrowers. Each such notice shall
set forth the date of such resignation. Upon any such resignation, Canadian
Required Lenders shall have the right to appoint a successor Canadian Agent and
if no Default or Event of Default has occurred and is continuing, Canadian
Required Lenders shall obtain the consent of Canadian Borrowers. A successor
must be appointed for any retiring Canadian Agent, and such Canadian Agent's
resignation shall become effective when such successor accepts such appointment.
If, within thirty days after the date of the retiring Canadian Agent's
resignation, no successor Canadian Agent has been appointed and has accepted
such appointment, then the retiring Canadian Agent may appoint a successor
Canadian Agent, which shall be a commercial bank organized or licensed to
conduct a banking or trust business under the Laws of Canada or of any province
thereof and if no Default or Event of Default has occurred and is continuing,
retiring Canadian Agent shall obtain the consent of Canadian Borrowers. Upon the
acceptance of any appointment as Canadian Agent hereunder by a successor
Canadian Agent, the retiring Canadian Agent shall be discharged from its duties
and obligations under this Agreement and the other Canadian Loan Documents.
After any retiring Canadian Agent's resignation hereunder the provisions of this
Article IX shall continue to inure to its benefit as to any actions taken or
omitted to be taken by it while it was Canadian Agent under the Canadian Loan
Documents.
Section 9.12. Lenders to Remain Pro Rata. It is the intent of all parties
hereto that the pro rata share of each Lender in the Tranche B Loans and in the
Canadian Obligations and the related rights and obligations of such Lender under
the Loan Documents shall be substantially the same at all times during the term
of this Agreement. Accordingly, the initial Tranche B Percentage Share of each
Tranche B Lender in the Tranche B Maximum Credit Amount will be the same as the
initial Percentage Share of such Lender in the Canadian Maximum Credit Amount.
All subsequent assignments and adjustments of the interests of the Tranche B
Lenders in the Tranche B Facility and the Canadian Obligations will be made so
as to maintain such a pro rata arrangement; provided that for the purposes of
determining these pro rata shares, any Percentage Share held by any Lender's
Affiliates shall be included in determining the interests of such Lender.
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Section 9.13. Other Agents. None of the Lenders identified on the facing
page or signature pages of this Agreement as a "syndication agent" shall have
any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, none of the Lenders so identified shall have or be deemed to have
any fiduciary relationship with any Lender. Each Lender acknowledges that it has
not relied, and will not rely, on any of the Lenders so identified in deciding
to enter into this Agreement or in taking or not taking action hereunder.
ARTICLE X - Miscellaneous
Section 10.1. Waivers and Amendments; Acknowledgments.
(a) Waivers and Amendments. No failure or delay (whether by course of
conduct or otherwise) by any Lender Party in exercising any right, power or
remedy which such Lender Party may have under any of the Canadian Loan Documents
shall operate as a waiver thereof or of any other right, power or remedy, nor
shall any single or partial exercise by any Lender Party of any such right,
power or remedy preclude any other or further exercise thereof or of any other
right, power or remedy. No waiver of any provision of any Canadian Loan Document
and no consent to any departure therefrom shall ever be effective unless it is
in writing and signed as provided below in this section, and then such waiver or
consent shall be effective only in the specific instances and for the purposes
for which given and to the extent specified in such writing. No notice to or
demand on any Restricted Person shall in any case of itself entitle any
Restricted Person to any other or further notice or demand in similar or other
circumstances. This Agreement and the other Canadian Loan Documents set forth
the entire understanding between the parties hereto with respect to the
transactions contemplated herein and therein and supersede all prior discussions
and understandings with respect to the subject matter hereof and thereof, and no
waiver, consent, release, modification or amendment of or supplement to this
Agreement or the other Canadian Loan Documents shall be valid or effective
against any party hereto unless the same is in writing and signed by (i) if such
party is Canadian Borrowers, by Canadian Borrowers, (ii) if such party is
Canadian Agent or Canadian LC Issuer, by such party, and (iii) if such party is
a Lender, by such Lender or by Canadian Agent on behalf of Lenders with the
written consent of Canadian Required Lenders (which consent has already been
given as to the termination of the Canadian Loan Documents as provided in
Section 10.10). Notwithstanding the foregoing or anything to the contrary
herein, Canadian Agent shall not, without the prior consent of US Majority
Lenders and Canadian Majority Lenders, execute and deliver on behalf of such
Lender any waiver or amendment which would increase the Canadian Maximum Credit
Amount hereunder, except in connection with the Re-allocations described in
Section 1.12. Notwithstanding the foregoing or anything to the contrary herein,
Canadian Agent shall not, without the prior consent of each individual Canadian
Lender, execute and deliver on behalf of such Lender any waiver or amendment
which would: (1) waive any of the conditions specified in Article IV, (2)
increase the maximum amount which such Lender is committed hereunder to lend,
(3) reduce any fees payable to such Lender hereunder, or the principal of, or
interest on, such Lender's Note, (4) postpone any date fixed for any payment of
any such fees, principal or interest,
57
(5) change the aggregate amount of Percentage Shares which is required for
Canadian Agent, Lenders or any of them to take any particular action under the
Canadian Loan Documents, (6) release either Canadian Borrower, Canadian
Guarantor or Devon Financing ULC (to the extent not otherwise released pursuant
to the terms of the Devon Financing ULC Guaranty executed and delivered to
Canadian Agent) from its obligation to pay such Lender's Advances (it being
understood and agreed that neither any assignment by Devon Financing ULC
contemplated by Section 13 of such Devon Financing ULC Guaranty nor the
termination thereof in accordance with its terms thereof shall constitute a
release of Canadian Borrower or the Canadian Guarantor within the meaning of
this Section 10.1(a) or shall require the consent of any Lender), or (7) amend
this Section 10.1(a), except in connection with the Re-allocations described in
Section 1.12.
(b) Acknowledgments and Admissions. Each Canadian Borrower hereby
represents, warrants, acknowledges and admits that (i) it has been advised by
counsel in the negotiation, execution and delivery of the Canadian Loan
Documents to which it is a party, (ii) it has made an independent decision to
enter into this Agreement and the other Canadian Loan Documents to which it is a
party, without reliance on any representation, warranty, covenant or undertaking
by Canadian Agent or any Lender, whether written, oral or implicit, other than
as expressly set out in this Agreement or in another Canadian Loan Document
delivered on or after the date hereof, (iii) there are no representations,
warranties, covenants, undertakings or agreements by any Lender as to the
Canadian Loan Documents except as expressly set out in this Agreement or in
another Canadian Loan Document delivered on or after the date hereof, (iv) no
Lender has any fiduciary obligation toward such Canadian Borrower with respect
to any Canadian Loan Document or the transactions contemplated thereby, (v) the
relationship pursuant to the Canadian Loan Documents between such Canadian
Borrower and the other Restricted Persons, on one hand, and each Lender, on the
other hand, is and shall be solely that of debtor and creditor, respectively,
(vi) no partnership or joint venture exists with respect to the Canadian Loan
Documents between any Restricted Person and any Lender, (vii) Canadian Agent is
not such Canadian Borrower's Canadian Agent, but Canadian Agent for Lenders,
(viii) without limiting any of the foregoing, no Canadian Borrower is relying
upon any representation or covenant by any Lender, or any representative
thereof, and no such representation or covenant has been made, that any Lender
will, at the time of an Event of Default or Default, or at any other time,
waive, negotiate, discuss, or take or refrain from taking any action permitted
under the Canadian Loan Documents with respect to any such Event of Default or
Default or any other provision of the Canadian Loan Documents, and (ix) all
Lender Parties have relied upon the truthfulness of the acknowledgments in this
section in deciding to execute and deliver this Agreement and to become
obligated hereunder.
(c) Joint Acknowledgment. THIS WRITTEN AGREEMENT 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.
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THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
(d) Annual Rates of Interest. For the purposes of the Interest Act
(Canada), whenever interest payable pursuant to this Agreement is calculated on
the basis of a period other than a calendar year (the "Interest Period"), each
rate of interest determined pursuant to such calculation expressed as an annual
rate is equivalent to such rate as so determined multiplied by the actual number
of days in the calendar year in which the same is to be ascertained and divided
by the number of days in the Interest Period.
Section 10.2. Survival of Agreements; Cumulative Nature. All of Restricted
Persons' various representations, warranties, covenants and agreements in the
Canadian Loan Documents shall survive the execution and delivery of this
Agreement and the other Canadian Loan Documents and the performance hereof and
thereof, including the making or granting of the Canadian Loans and the delivery
of the Canadian Notes and the other Canadian Loan Documents, and shall further
survive until all of the Canadian Obligations are paid in full to each Lender
Party and all of Lender Parties' obligations to Canadian Borrowers are
terminated. All statements and agreements contained in any certificate or other
instrument delivered by any Restricted Person to any Lender Party under any
Canadian Loan Document shall be deemed representations and warranties by each
Canadian Borrower or agreements and covenants of each Canadian Borrower under
this Agreement. The representations, warranties, indemnities, and covenants made
by Restricted Persons in the Canadian Loan Documents, and the rights, powers,
and privileges granted to Lender Parties in the Canadian Loan Documents, are
cumulative, and, except for expressly specified waivers and consents, no
Canadian Loan Document shall be construed in the context of another to diminish,
nullify, or otherwise reduce the benefit to any Lender Party of any such
representation, warranty, indemnity, covenant, right, power or privilege. In
particular and without limitation, no exception set out in this Agreement to any
representation, warranty, indemnity, or covenant herein contained shall apply to
any similar representation, warranty, indemnity, or covenant contained in any
other Canadian Loan Document, and each such similar representation, warranty,
indemnity, or covenant shall be subject only to those exceptions which are
expressly made applicable to it by the terms of the various Canadian Loan
Documents.
Section 10.3. Notices. All notices, requests, consents, demands and other
communications required or permitted under any Canadian Loan Document shall be
in writing, unless otherwise specifically provided in such Canadian Loan
Document (provided that Canadian Agent may give telephonic notices to the other
Lender Parties), and shall be deemed sufficiently given or furnished if
delivered by personal delivery, by facsimile or other electronic transmission,
by delivery service with proof of delivery, or by registered Canadian mail,
postage prepaid, to each Canadian Borrower and Restricted Persons at the address
of each Canadian Borrower specified on the signature pages hereto and to
Canadian Agent at its address specified on the signature pages hereto and to
each Lender Party at the address specified on Annex II (unless changed by
similar notice in writing given by the particular Person whose address is to be
changed). Any such notice or communication shall be deemed to have been given
(a) in the case of personal delivery or delivery service, as of the date of
first attempted delivery during normal business hours at the address provided
herein, (b) in the case of facsimile or other electronic
59
transmission, upon receipt, or (c) in the case of registered Canadian mail, five
Business Days after deposit in the mail; provided, however, that no Borrowing
Notice shall become effective until actually received by Canadian Agent.
Section 10.4. Payment of Expenses; Indemnity.
(a) Payment of Expenses. Whether or not the transactions contemplated by
this Agreement are consummated, Devon Canada will promptly (and in any event,
within 30 days after any invoice or other statement or notice) pay: (i) all
reasonable costs and expenses incurred by or on behalf of Canadian Agent
(including without limitation, legal fees) in connection with (1) the
negotiation, preparation, execution and delivery of the Canadian Loan Documents,
and any and all consents, waivers or other documents or instruments relating
thereto, (2) the borrowings hereunder and other action reasonably required in
the course of administration hereof, (3) monitoring or confirming (or
preparation or negotiation of any document related to) Canadian Borrowers'
compliance with any covenants or conditions contained in this Agreement or in
any Canadian Loan Document, and (ii) all reasonable costs and expenses incurred
by or on behalf of any Lender Party (including without limitation, legal fees,
consultants' fees and accounting fees) in connection with the defense or
enforcement of any of the Canadian Loan Documents (including this section) or
the defense of any Lender Party's exercise of its rights thereunder.
(b) INDEMNITY. DEVON CANADA AGREES TO INDEMNIFY EACH AGENT-RELATED PERSON
AND EACH LENDER PARTY, UPON DEMAND, FROM AND AGAINST ANY AND ALL LIABILITIES,
OBLIGATIONS, CLAIMS, LOSSES, DAMAGES, PENALTIES, FINES, ACTIONS, JUDGMENTS,
SUITS, SETTLEMENTS, COSTS, EXPENSES OR DISBURSEMENTS, EXCLUDING PRINCIPAL AND
INTEREST OWING BY NORTHSTAR ENERGY WITH RESPECT TO CANADIAN ADVANCES MADE TO
NORTHSTAR ENERGY, BUT INCLUDING REASONABLE FEES OF LEGAL COUNSEL, ACCOUNTANTS,
EXPERTS AND ADVISORS) OF ANY KIND OR NATURE WHATSOEVER (IN THIS SECTION
COLLECTIVELY CALLED "LIABILITIES AND COSTS") WHICH TO ANY EXTENT (IN WHOLE OR IN
PART) MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST SUCH LENDER PARTY
GROWING OUT OF, RESULTING FROM OR IN ANY OTHER WAY ASSOCIATED WITH THE CANADIAN
LOAN DOCUMENTS AND THE TRANSACTIONS AND EVENTS (INCLUDING THE ENFORCEMENT OR
DEFENSE THEREOF) AT ANY TIME ASSOCIATED THEREWITH OR CONTEMPLATED THEREIN
(WHETHER ARISING IN CONTRACT OR IN TORT OR OTHERWISE AND INCLUDING ANY VIOLATION
OR NONCOMPLIANCE WITH ANY ENVIRONMENTAL LAWS BY ANY AGENT-RELATED PERSON OR ANY
LENDER PARTY OR ANY OTHER PERSON OR ANY LIABILITIES OR DUTIES OF ANY
AGENT-RELATED PERSON OR ANY LENDER PARTY OR ANY OTHER PERSON WITH RESPECT TO
HAZARDOUS MATERIALS FOUND IN OR RELEASED INTO THE ENVIRONMENT).
THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND
COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM
OR THEORY OF STRICT LIABILITY OR CAUSED, IN WHOLE OR IN PART BY ANY NEGLIGENT
ACT OR OMISSION OF ANY KIND BY ANY AGENT-RELATED PERSON OR LENDER PARTY,
60
provided only that no Agent-Related Person or Lender Party shall be entitled
under this section to receive indemnification for that portion, if any, of any
liabilities and costs which is proximately caused by its own individual gross
negligence or willful misconduct, as determined in a final judgment. If any
Person (including Canadian Borrowers or any of their Affiliates) ever alleges
such gross negligence or willful misconduct by any Lender Party, the
indemnification provided for in this section shall nonetheless be paid upon
demand, subject to later adjustment or reimbursement, until such time as a court
of competent jurisdiction enters a final judgment as to the extent and effect of
the alleged gross negligence or willful misconduct. As used in this section the
term "Lender Party" shall refer not only to each Person designated as such in
Section 1.1 but also to each director, officer, agent, attorney, employee,
representative, attorney-in-fact and Affiliate of such Person.
Section 10.5. Parties in Interest. All grants, covenants and agreements
contained in the Canadian Loan Documents shall bind and inure to the benefit of
the parties thereto and their respective successors and assigns; provided,
however, that, except as set forth in Section 13 of the Devon Financing ULC
Guaranties, no Restricted Person may assign or transfer any of its rights or
delegate any of its duties or obligations under any Canadian Loan Document
without the prior consent of all Lenders (and any attempted assignment or
transfer by any Restricted Person without such consent shall be null and void).
Neither Canadian Borrowers nor any Affiliates of Canadian Borrowers shall
directly or indirectly purchase or otherwise retire any Obligations owed to any
Lender nor will any Lender accept any offer to do so, unless each Lender shall
have received substantially the same offer with respect to the same Percentage
Share of the Obligations owed to it. If Canadian Borrowers or any Affiliate of
Canadian Borrowers at any time purchases some but less than all of the
Obligations owed to all Lender Parties, such purchaser shall not be entitled to
any rights of any Lender under the Canadian Loan Documents unless and until
Canadian Borrowers or their Affiliates have purchased all of the Obligations.
Section 10.6. Assignments and Participations.
(a) Any Lender may at any time assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Canadian Loans, Canadian Note, and
its Percentage Share of the Canadian LC Obligations and the Canadian Maximum
Credit Amount); provided, however, that
(i) each such assignment shall be to an Eligible Assignee;
(ii) together with each such assignment of its rights and
obligations under this Agreement, such Lender shall assign the same
Percentage Share of its rights and obligations with respect to the Tranche
B Loans under the US Agreement to the same Eligible Assignee or an
Affiliate of such Eligible Assignee, unless such assignment is being made
to an Eligible Assignee which is an Affiliate of the assignor;
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(iii) except in the case of such an assignment to another Lender or
an assignment of all of a Lender's rights and obligations under this
Agreement, any partial assignment of such Lender's rights and obligations
under this Agreement and under the US Agreement shall be in a collective
amount at least equal to US $20,000,000 or an integral multiple of US
$5,000,000 in excess thereof (in the case of the US Agreement calculated
with respect to the Maximum US Credit Amount during the Tranche B
Revolving Period and thereafter calculated with respect to the aggregate
amount of the Tranche B Facility Usage and the Tranche A Maximum Credit
Amount, and in the case of the Canadian Credit Agreement calculated with
respect to the Canadian Maximum Credit Amount during the Canadian
Revolving Period and thereafter calculated with respect to the Canadian
Facility Usage);
(iv) each such assignment by a Lender shall be of a constant, and
not varying, percentage of all of its rights and obligations under the
Canadian Loan Documents, excluding, in the case of Bank of America,
Canadian Swing Loans; and
(v) the parties to such assignment shall execute and deliver to
Canadian Agent for its acceptance an Assignment and Assumption in the form
of Exhibit F hereto, together with any Canadian Note subject to such
assignment and a processing fee of US$3,500.
Subject to acceptance and recording thereof by Canadian Agent pursuant to
subsection (b) of this Section, from and after the effective date specified in
each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the obligations, rights, and benefits of a
Lender under this Agreement and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 3.2, 3.6, 3.9,
3.10 and 10.4). Upon the consummation of any assignment pursuant to this
section, the assignor, Canadian Agent and Canadian Borrowers shall make
appropriate arrangements so that, if required, new Canadian Notes are issued to
the assignor and the assignee. If the assignee is not incorporated under the
Laws of Canada or a province thereof, it shall deliver to Canadian Borrowers and
Canadian Agent certification as to exemption from deduction or withholding of
Taxes in accordance with Section 3.9 of the US Agreement. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this subsection shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section.
(b) Canadian Agent, acting solely for this purpose as an agent of Canadian
Borrowers, shall maintain at its address referred to in Section 10.3 a copy of
each Assignment and Assumption delivered to and accepted by it and a register
for the recordation of the names and addresses of the Lenders and their
Percentage Share of the Canadian Maximum Credit Amount of, and principal amount
of the Canadian Loans owing to, each Lender from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all purposes,
absent
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manifest error, and Canadian Borrowers, Canadian Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by Canadian Borrowers or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Assumption executed by the
parties thereto, together with any Canadian Note subject to such assignment and
payment of the processing fee, Canadian Agent shall, if such Assignment and
Assumption has been completed and is in substantially the form of Exhibit F
hereto, (i) accept such Assignment and Assumption, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
parties thereto.
(d) Any Lender may at any time, without the consent of, or notice to,
Canadian Borrowers or Canadian Agent, sell participations to any Person (other
than a natural person or Canadian Borrowers or any of Canadian Borrowers'
Affiliates or Subsidiaries) in all or a portion of such Lender's rights and/or
obligations under this Agreement (including all or a portion of the Canadian
Maximum Credit Amount and its Canadian Loans); provided, however, that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participant shall be entitled to the
benefit of the yield protection provisions contained in Article III (provided
that a participant shall not be entitled to receive any greater payment under
Section 3.1 or 3.2 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such participant, unless the
sale of the participation to such participant is made with the Canadian
Borrowers' prior written consent, and (iv) Canadian Borrowers, Canadian Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. A participant that would have been subject to Section 3.9 if it were
a Lender, shall not be entitled to the benefits of Section 3.1 unless Canadian
Borrowers have been notified of the participation sold to such participant, and
such participant agrees, for the benefit of Canadian Borrowers, to comply with
such Section as if it were a Lender) and the right of offset contained in
Section 6.13 (provided that such participant agrees to be subject to Section 9.8
as if it were a Lender). Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification, or
waiver of any provision of this Agreement (provided that such Lender may agree
that it will not approve amendments, modifications, or waivers decreasing the
amount of principal of or the rate at which interest is payable on such Canadian
Loans or Canadian Note, extending any scheduled principal payment date or date
fixed for the payment of interest on such Canadian Loans or Canadian Note, or
extending its Canadian Maximum Credit Amount without the prior consent of the
participant).
(e) If the consent of Canadian Borrowers to an assignment or to an
Eligible Assignee is required hereunder, Canadian Borrowers shall be deemed to
have given their consent ten (10) Business Days after the date notice thereof
has been delivered by the assigning Lender (through
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Canadian Agent) unless such consent is expressly refused by Canadian Borrowers
prior to such tenth Business Day.
(f) Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Percentage Share in the Canadian
Obligations and its rights and obligations hereunder pursuant to subsection
10.6(a) above, Bank of America may (i) upon 30 days' notice to Canadian
Borrowers and Canadian Lenders, resign as Canadian LC Issuer and/or (ii) upon 30
days' notice to Canadian Borrowers, resign as Canadian Swing Lender and/or
terminate its commitment to make Canadian Swing Loans. In the event of any such
resignation by Bank of America as Canadian LC Issuer or Canadian Swing Lender or
termination of its commitment to make Canadian Swing Loans, Canadian Borrowers
shall be entitled to appoint from among the Canadian Lenders a successor
Canadian LC Issuer or Canadian Swing Lender hereunder; provided, however, that
no failure by Canadian Borrowers to appoint any such successor shall affect the
resignation of Bank of America as Canadian LC Issuer or Canadian Swing Lender or
termination of its commitment to make Canadian Swing Loans, as the case may be.
If Bank of America resigns as Canadian LC Issuer, it shall retain all the rights
and obligations of Canadian LC Issuer hereunder with respect to all Letters of
Credit outstanding as of the effective date of its resignation as Canadian LC
Issuer and all Canadian LC Obligations with respect thereto (including the right
to require Canadian Lenders to make Canadian Prime Rate Loans or fund
participations in unreimbursed amounts pursuant to Section 2.8. If Bank of
America resigns as Canadian Swing Lender or terminates its commitment to make
Canadian Swing Loans, it shall retain all the rights of Canadian Swing Lender
provided for hereunder with respect to Canadian Swing Loans made by it and
outstanding as of the effective date of such termination, including the right to
require the Canadian Lenders to make Canadian Prime Rate Loans (or other
Advances if requested by a Canadian Borrower) or fund participations in
outstanding Canadian Swing Loans pursuant to Section 1.11.
(g) Notwithstanding any other provision set forth in this Agreement, any
Lender residing in the United States may at any time assign and pledge all or
any portion of its Canadian Advances and its Canadian Note to any Federal
Reserve Bank as collateral security pursuant to Regulation A and any Operating
Circular issued by such Federal Reserve Bank. No such assignment shall release
the assigning Lender from its obligations hereunder.
(h) Any Lender may furnish any information concerning Canadian Borrowers
or any of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 10.7 hereof.
Section 10.7. Confidentiality. Canadian Agent and each Lender (in this
Section each is called a "Lending Party") agrees to keep confidential any
information furnished or made available to it by Canadian Borrowers pursuant to
this Agreement that is marked confidential; provided that nothing herein shall
prevent any Lending Party from disclosing such information (a) to any other
Lending Party or any Affiliate of any Lending Party, or any officer, director,
employee, agent, or advisor of any Lending Party or Affiliate of any Lending
Party, (b) to any other Person if reasonably incidental to the administration of
the credit facility provided herein, (c) as required by any Law, rule, or
regulation, (d) upon the order of any
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Tribunal, (e) upon the request or demand of any regulatory agency or authority,
(f) that is or becomes available to the public or that is or becomes available
to any Lending Party other than as a result of a disclosure by any Lending Party
prohibited by this Agreement, (g) in connection with any litigation to which
such Lending Party or any of its Affiliates may be a party, (h) to the extent
necessary in connection with the exercise of any remedy under this Agreement or
any other Canadian Loan Document, and (i) subject to provisions substantially
similar to those contained in this section, to any actual or proposed
participant or assignee.
Section 10.8. Governing Law; Submission to Process. EXCEPT TO THE EXTENT
THAT THE LAW OF ANOTHER JURISDICTION IS EXPRESSLY ELECTED IN A CANADIAN LOAN
DOCUMENT, THE CANADIAN LOAN DOCUMENTS SHALL BE DEEMED CONTRACTS AND INSTRUMENTS
MADE UNDER THE LAWS OF THE PROVINCE OF ALBERTA AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE PROVINCE OF ALBERTA
AND THE LAWS OF CANADA APPLICABLE THERETO, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HEREBY AGREES THAT ANY LEGAL ACTION OR
PROCEEDING AGAINST SUCH CANADIAN BORROWER WITH RESPECT TO THIS AGREEMENT, THE
CANADIAN NOTES OR ANY OF THE CANADIAN LOAN DOCUMENTS MAY BE BROUGHT IN THE
COURTS OF THE PROVINCE OF ALBERTA AND EACH PARTY SUBMITS AND ATTORNS TO, THE
NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH PARTY WAIVES ANY RIGHT
TO STAY OR TO DISMISS ANY ACTION OR PROCEEDING BROUGHT BEFORE SAID COURTS ON THE
BASIS OF FORUM NON CONVENIENS. NOTHING HEREIN SHALL AFFECT THE RIGHT OF LENDER
PARTIES TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF LENDER PARTIES TO BRING PROCEEDINGS AGAINST CANADIAN BORROWERS IN THE
COURTS OF ANY OTHER JURISDICTION.
Section 10.9. Waiver of Judgment Interest Act (Alberta). To the extent
permitted by Law, the provisions of the Judgment Interest Act (Alberta) shall
not apply to the Canadian Loan Documents and are hereby expressly waived by
Canadian Borrowers.
Section 10.10. Deemed Reinvestment Not Applicable. For the purposes of the
Interest Act (Canada), the principle of deemed reinvestment of interest shall
not apply to any interest calculation under the Canadian Loan Documents, and the
rates of interest stipulated in this Agreement are intended to be nominal rates
and not effective rates or yields.
Section 10.11. Limitation on Interest. Lender Parties, Restricted Persons
and any other parties to the Canadian Loan Documents intend to contract in
strict compliance with applicable usury Law from time to time in effect. In
furtherance thereof such Persons stipulate and agree that none of the terms and
provisions contained in the Canadian Loan Documents shall ever be construed to
create a contract to pay, for the use, forbearance or detention of money,
interest in excess of the maximum amount of interest permitted to be charged by
applicable Law from time to time in effect. Neither any Restricted Person nor
any present or future guarantors, endorsers, or other Persons hereafter becoming
liable for payment of any Obligation shall ever be liable for unearned interest
thereon or shall ever be required to pay interest thereon in excess of the
maximum amount that may be lawfully charged
65
under applicable Law from time to time in effect, and the provisions of this
section shall control over all other provisions of the Canadian Loan Documents
which may be in conflict or apparent conflict herewith. Lender Parties expressly
disavow any intention to charge or collect excessive unearned interest or
finance charges in the event the maturity of any Obligation is accelerated. If
(a) the maturity of any Obligation is accelerated for any reason, (b) any
Obligation is prepaid and as a result any amounts held to constitute interest
are determined to be in excess of the legal maximum, or (c) any Lender or any
other holder of any or all of the Obligations shall otherwise collect moneys
which are determined to constitute interest which would otherwise increase the
interest on any or all of the Obligations to an amount in excess of that
permitted to be charged by applicable Law then in effect, then all sums
determined to constitute interest in excess of such legal limit shall, without
penalty, be promptly applied to reduce the then outstanding principal of the
related Obligations or, at such Lender's or holder's option, promptly returned
to Canadian Borrowers or the other payor thereof upon such determination. In
determining whether or not the interest paid or payable, under any specific
circumstance, exceeds the maximum amount permitted under applicable Law, Lender
Parties and Restricted Persons (and any other payors thereof) shall to the
greatest extent permitted under applicable Law, and in accordance with generally
accepted actuarial practices and principles, (i) characterize any non-principal
payment as an expense, fee or premium rather than as interest, (ii) exclude
voluntary prepayments and the effects thereof, and (iii) amortize, prorate,
allocate, and spread the total amount of interest throughout the entire
contemplated term of the instruments evidencing the Obligations in accordance
with the amounts outstanding from time to time thereunder and the maximum legal
rate of interest from time to time in effect under applicable Law in order to
lawfully charge the maximum amount of interest permitted under applicable Law.
In no event shall the aggregate "interest" (as defined in section 347 of the
Criminal Code (Canada)) payable under the Canadian Loan Documents exceed the
maximum effective annual rate of interest on the "credit advanced" (as defined
in that section) permitted under that section and, if any payment, collection or
demand pursuant to this Agreement in respect of "interest" (as defined in that
section) is determined to be contrary to the provisions of that section, such
payment, collection or demand shall be deemed to have been made by mutual
mistake of Canadian Borrowers, Canadian Agent and Lenders and the amount of such
excess payment or collection shall be refunded to Canadian Borrowers. For
purposes of the Canadian Loan Documents, the effective annual rate of interest
shall be determined in accordance with generally accepted actuarial practices
and principles over the term applicable to the Canadian Obligations on the basis
of annual compounding of the lawfully permitted rate of interest and, in the
event of dispute, a certificate of a Fellow of the Canadian Institute of
Actuaries appointed by Canadian Agent shall be prima facie evidence, for the
purposes of such determination.
Section 10.12. Termination; Limited Survival. In their sole and absolute
discretion, Canadian Borrowers may at any time that no Canadian Obligations are
owing elect in a written notice delivered to Canadian Agent to terminate this
Agreement. Upon receipt by Canadian Agent of such a notice, if no Canadian
Obligations are then owing this Agreement and all other Canadian Loan Documents
shall thereupon be terminated and the parties thereto released from all
prospective obligations thereunder. Notwithstanding the foregoing or anything
herein to the contrary, any waivers or admissions made by any Restricted Person
in any Canadian Loan Document, any Obligations under Sections 3.2 through 3.6,
and any
66
obligations which any Person may have to indemnify or compensate any Lender
Party shall survive any termination of this Agreement or any other Canadian Loan
Document. At the request and expense of Canadian Borrowers, Canadian Agent shall
prepare and execute all necessary instruments to reflect and effect such
termination of the Canadian Loan Documents. Canadian Agent is hereby authorized
to execute all such instruments on behalf of all Lenders, without the joinder of
or further action by any Lender.
Section 10.13. Severability. If any term or provision of any Canadian Loan
Document shall be determined to be illegal or unenforceable all other terms and
provisions of the Canadian Loan Documents shall nevertheless remain effective
and shall be enforced to the fullest extent permitted by applicable Law.
Section 10.14. Counterparts; Fax. This Agreement may be separately
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to
constitute one and the same Agreement. This Agreement and the Canadian Loan
Documents may be validly executed and delivered by facsimile or other electronic
transmission.
Section 10.15. Waiver of Jury Trial, Punitive Damages, etc. EACH CANADIAN
BORROWER AND EACH LENDER PARTY HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND
IRREVOCABLY (a) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
DIRECTLY OR INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN CONNECTION WITH
THE CANADIAN LOAN DOCUMENTS OR ANY TRANSACTION CONTEMPLATED THEREBY OR
ASSOCIATED THEREWITH, BEFORE OR AFTER MATURITY, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY, (b) WAIVES, TO
THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER IN ANY SUCH LITIGATION ANY "SPECIAL DAMAGES", AS DEFINED BELOW, (c)
CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR
ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS, AND (d) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT, THE OTHER CANADIAN LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED
HEREBY AND THEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
CONTAINED IN THIS SECTION. AS USED IN THIS SECTION, "SPECIAL DAMAGES" INCLUDES
ALL SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (REGARDLESS OF HOW
NAMED), BUT DOES NOT INCLUDE ANY PAYMENTS OR FUNDS WHICH ANY PARTY HERETO HAS
EXPRESSLY PROMISED TO PAY OR DELIVER TO ANY OTHER PARTY HERETO.
Section 10.16. Defined Terms. Capitalized terms and phrases used and not
otherwise defined herein shall for all purposes of this Agreement have the
meaning given to such terms and phrases in Annex I hereto.
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Section 10.17. Annex I, Exhibits and Schedules; Additional Definitions.
Annex I, Annex II, and all Exhibits and Schedules attached to this Agreement are
a part hereof for all purposes.
Section 10.18. Amendment of Defined Instruments. Unless the context
otherwise requires or unless otherwise provided herein, the terms defined in
this Agreement which refer to a particular agreement, instrument or document
also refer to and include all renewals, extensions, modifications, amendments
and restatements of such agreement, instrument or document, provided that
nothing contained in this section shall be construed to authorize any such
renewal, extension, modification, amendment or restatement. Unless the context
otherwise requires or unless otherwise provided herein, the references in this
Agreement to a particular statute, rule or regulation also refer to and include
all amendments, supplements and other modifications to such statute, rule or
regulation.
Section 10.19.References and Titles. All references in this Agreement to
Exhibits, Schedules, articles, sections, subsections and other subdivisions
refer to the Exhibits, Schedules, articles, sections, subsections and other
subdivisions of this Agreement unless expressly provided otherwise. Titles
appearing at the beginning of any subdivisions are for convenience only and do
not constitute any part of such subdivisions and shall be disregarded in
construing the language contained in such subdivisions. The words "this
Agreement", "this instrument", "herein", "hereof", "hereby", "hereunder" and
words of similar import refer to this Agreement as a whole and not to any
particular subdivision unless expressly so limited. The phrases "this section"
and "this subsection" and similar phrases refer only to the sections or
subsections hereof in which such phrases occur. The word "or" is not exclusive,
and the word "including" (in its various forms) means "including without
limitation". Pronouns in masculine, feminine and neuter genders shall be
construed to include any other gender, and words in the singular form shall be
construed to include the plural and vice versa, unless the context otherwise
requires.
Section 10.20. Calculations and Determinations. All calculations under the
Canadian Loan Documents of interest chargeable with respect to Eurodollar Loans
and of fees (excluding stamping fees on Bankers' Acceptances) shall be made on
the basis of actual days elapsed (including the first day but excluding the
last) and a year of 360 days. All calculations with respect to Bankers'
Acceptances shall be made on the basis of actual days elapsed (including the
first day but excluding the last) and a year of 365 days. All other calculations
of interest made under the Canadian Loan Documents shall be made on the basis of
actual days elapsed (including the first day but excluding the last) and a year
of 365 or 366 days, as appropriate. Each determination by a Lender Party of
amounts to be paid under Article III or any other matters which are to be
determined hereunder by a Lender Party (such as any US Dollar Eurodollar Rate,
Canadian Dollar Eurodollar Rate, Adjusted US Dollar Eurodollar Rate, Adjusted
Canadian Dollar Eurodollar Rate, Business Day, Interest Period, or Reserve
68
Requirement) shall, in the absence of manifest error, be conclusive and binding.
Unless otherwise expressly provided herein or unless Required Lenders otherwise
consent all financial statements and reports furnished to any Lender Party
hereunder shall be prepared and all financial computations and determinations
pursuant hereto shall be made in accordance with US GAAP.
Section 10.21. Construction of Indemnities and Releases. All
indemnification and release provisions of this Agreement shall be construed
broadly (and not narrowly) in favor of the Persons receiving indemnification
from or being released.
Section 10.22. Separate Obligations. Except as expressly set forth in
Sections 1.5 and 10.4, (i) all obligations of Northstar Energy and Devon Canada
under this Agreement and the other Canadian Loan Documents are separate and
individual obligations of Northstar Energy and Devon Canada, respectively, and
(ii) Northstar Energy shall not have any liabilities in respect of Canadian
Advances made by the Lenders to Devon Canada nor shall Devon Canada have any
liabilities in respect of Canadian Advances made to Northstar Energy.
Notwithstanding anything contained herein, Northstar Energy shall not have any
liability to pay any assessments, fees or costs, or otherwise provide financial
assistance, relating to Canadian Advances made to Devon Canada or any other
obligations of Devon Canada.
Section 10.23 Amendment and Restatement of Existing Canadian Agreement.
This Agreement amends and restates in its entirety the Existing Canadian
Agreement. Canadian Borrowers hereby agree that (i) the Indebtedness owing by
Northstar Energy and outstanding under the Existing Canadian Agreement and all
accrued and unpaid interest thereon and (ii) all accrued and unpaid fees under
the Existing Canadian Agreement shall be deemed to be owing by Northstar Energy
and outstanding under and governed by this Agreement. Canadian Borrowers hereby
acknowledge, warrant, represent and agree that this Agreement is not intended to
be, and shall not be deemed or construed to be, a novation or release of the
Canadian Loans or the Canadian Loan Documents. BAs outstanding on the effective
date of this Agreement shall settle on the expiration date thereof in accordance
with the interests therein held by the Canadian Lenders on such effective date.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
69
IN WITNESS WHEREOF, this Agreement is executed as of the date first
written above.
NORTHSTAR ENERGY CORPORATION
Canadian Borrower
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President - Finance
Address:
▇▇▇▇, ▇▇▇-▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Attention: Vice President - Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
DEVON CANADA CORPORATION
Canadian Borrower
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President - Finance
Address:
▇▇▇▇, ▇▇▇-▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Attention: Vice President - Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA, N.A.
Administrative Agent, Canadian LC Issuer and
Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Vice President
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ABN AMRO BANK, N.V., CANADA BRANCH
Lender
By: /s ▇▇▇▇▇▇ ▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
BANK OF MONTREAL
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
BANK OF OKLAHOMA, N.A.
Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
BANK OF TOKYO-MITSUBISHI (CANADA)
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BAYERISCHE LANDESBANK
GIROZENTRALE, TORONTO BRANCH
Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Second Vice President
Citibank, N.A., Canadian branch
Lender
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON
Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
DEN NORSKE BANK ASA
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: First Vice President
DEUTSCHE BANK AG, CANADA BRANCH
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
JPMORGAN CHASE BANK, TORONTO BRANCH
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
LOCAL OKLAHOMA BANK, N.A.
Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Sr. Vice President
ROYAL BANK OF CANADA
Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
SOUTHWEST BANK OF TEXAS, N.A.
Lender
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA
Lender
By: /s/ ▇▇▇▇ ▇. Cebryk
---------------------------------------------
Name: ▇▇▇▇ ▇. Cebryk
Title: Director
UBS AG, STAMFORD BRANCH
Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Director, Banking Products Services
By: /s/ ▇▇▇▇▇▇▇ V Saint
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Saint
Title: Associate Director
Banking Products Services, U.S.
UMB BANK
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Community Bank President
WACHOVIA BANK, NATIONAL
ASSOCIATION
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
ANNEX I
DEFINED TERMS
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including
and together with, without limitation, Indebtedness incurred in connection with,
or in contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any assets acquired by such specified Person, and any refinancing of
the foregoing indebtedness on similar terms, taking into account current market
conditions.
"Adjusted Canadian Dollar Eurodollar Rate" means, for any Canadian Dollar
Eurodollar Loan for any Eurodollar Interest Period therefor, the per annum rate
equal to the sum of (a) the Applicable Margin plus (b) the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by
Canadian Agent to be equal to the quotient obtained by dividing (i) the Canadian
Dollar Eurodollar Rate for such Canadian Dollar Eurodollar Loan for such
Eurodollar Interest Period by (ii) 1 minus the Reserve Requirement for such
Canadian Dollar Eurodollar Loan for such Interest Period. The Adjusted Canadian
Dollar Eurodollar Rate for any Canadian Dollar Eurodollar Loan shall change
whenever the Applicable Margin or the Reserve Requirement changes. No Adjusted
Canadian Dollar Eurodollar Rate charged by any Person shall ever exceed the
Highest Lawful Rate.
"Adjusted US Dollar Eurodollar Rate" means, for any US Dollar Eurodollar
Loan for any Eurodollar Interest Period therefor, the per annum rate equal to
the sum of (a) the Applicable Margin plus (b) the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined by US Agent to be
equal to the quotient obtained by dividing (i) the US Dollar Eurodollar Rate for
such US Dollar Eurodollar Loan for such Eurodollar Interest Period by (ii) 1
minus the Reserve Requirement for such US Dollar Eurodollar Loan for such
Interest Period. The Adjusted US Dollar Eurodollar Rate for any US Dollar
Eurodollar Loan shall change whenever the Applicable Margin or the Reserve
Requirement changes. No Adjusted US Dollar Eurodollar Rate charged by any Person
shall ever exceed the Highest Lawful Rate.
"Affiliate" means, as to any Person, each other Person that directly or
indirectly (through one or more intermediaries or otherwise) controls, is
controlled by, or is under common control with, such Person. A Person shall be
deemed to be "controlled by" any other Person if such other Person possesses,
directly or indirectly, power
(a) to vote 20% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors or managing general
partners; or
(b) to direct or cause the direction of the management and policies of
such Person whether by contract or otherwise.
"Agent-Related Persons" means the US Agent (including Bank of America in
its capacity as US LC Issuer and US Swing Lender) and its Affiliates, the
Canadian Agent (including Bank of America in its capacity as Canadian LC Issuer
and Canadian Swing Lender) and its Affiliates, the Arranger, any successors to
US Agent or Canadian Agent appointed in accordance with the Loan Documents, and
the officers, directors, employees, agents and attorneys-in-fact of such
Persons.
"Applicable Currency" means (i) when used with respect to any US Loan or
US LC Obligations, US Dollars, and (ii) when used with respect to any Canadian
Prime Rate Loan, any Canadian Dollar Eurodollar Loan or any Bankers' Acceptance,
Canadian Dollars, and (iii) when used with respect to any Canadian Base Rate
Loan or an US Dollar Eurodollar Loan made under the Canadian Agreement, US
Dollars.
"Applicable Lending Office" means, for each Lender and for each Type of
Loan, the "Lending Office" of such Lender (or of an Affiliate of such Lender)
designated for such Type of Loan on Annex II hereof or such other office of such
Lender (or an Affiliate of such Lender) as such Lender may from time to time
specify to US Agent, Canadian Agent, and Borrowers by written notice in
accordance with the terms hereof as the office by which its Loans of such Type
are to be made and maintained.
"Applicable Margin" means
(a) when used with respect to any Tranche A Loan on any date, the number
of Basis Points per annum set forth below based on the Applicable
Rating Level on such date:
Applicable Applicable
Rating Level Margin
------------ ----------
▇▇▇▇▇ ▇ ▇▇.▇
▇▇▇▇▇ ▇▇ ▇▇.▇
▇▇▇▇▇ ▇▇▇ 45.0
Level IV 67.5
Level V 75.0
(b) when used with respect to any Tranche B Loan prior to the Tranche B
Conversion Date, the number of Basis Points per annum set forth in
column A below and on and after the Tranche B Conversion Date, the
number of Basis Points per annum
2
set forth in column B below, in each case based on the Applicable Rating
Level on such date:
Applicable A B
Rating Level Tranche B Loan Tranche B Loan
Applicable Margin Applicable Margin
Prior to Tranche B Conversion On and After Tranche B Conversion
Date Date
------------ ----------------------------- ---------------------------------
Level I 53.5 91.0
Level II 65.0 102.5
Level III 75.0 112.5
Level IV 97.5 135.0
Level V 115.0 177.5
(c) when used with respect to any Canadian Loan prior to the Canadian
Conversion Date, the number of Basis Points per annum set forth in
column A below and on and after the Canadian Conversion Date, the
number of Basis Points per annum set forth in column B below, in
each case based on the Applicable Rating Level on such date:
Applicable A B
Rating Level Canadian Loan Canadian Loan
Applicable Margin Applicable Margin
Prior to On and After
Canadian Conversion Date Canadian Conversion Date
------------ ------------------------ ------------------------
Level I 51.5 89.0
Level II 62.5 100.0
Level III 72.5 110.0
Level IV 95.0 132.5
Level V 112.5 175.0
Changes in the Applicable Margin will occur automatically without prior notice
as changes in the Applicable Rating Level occur. US Agent will give notice
promptly to Borrowers and the Lenders of changes in the Applicable Margin.
"Applicable Rating Level" means for any day, the highest Rating Level (as
such term is defined below in this paragraph) issued by S&P or ▇▇▇▇▇'▇
(collectively, in this definition called the "Designated Rating Agencies"). As
used in this definition, (i) the term "Rating Level" means
3
for any day with respect to any of the Designated Rating Agencies, the rating
level described below (or its then equivalent) applicable on such day, issued by
such Designated Rating Agency, from time to time, with respect to US Borrower's
Long-Term Debt or if such rating is unavailable, equivalents thereof, including
counterparty ratings, implied ratings and corporate ratings; (ii) "US Borrower's
Long-Term Debt" means senior, unsecured, non-credit enhanced (other than by
guaranties of Affiliates of US Borrower) long-term indebtedness for borrowed
money of US Borrower, and (iii) "$" means a rating equal to or more favorable
than and "<" means a rating less favorable than.
Rating Level S&P ▇▇▇▇▇'▇
------------ --- -------
Level I $A- $A3
Level II BBB+ Baa1
Level III BBB Baa2
Level IV BBB- Baa3
Level V Less Than BBB- Less Than Baa3
If any of the Designated Rating Agencies shall not have in effect a rating for
US Borrower's Long-Term Debt or if the rating system of any of the Designated
Rating Agencies shall change, or if either of the Designated Rating Agencies
shall cease to be in the business of rating corporate debt obligations, US
Borrower and Required Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the unavailability of
ratings from such Designated Rating Agency, but until such an agreement shall be
reached, the Applicable Rating Level shall be based only upon the rating by the
remaining Designated Rating Agency.
In the event that the ratings of the Designated Rating Agencies shall have a
difference of more than one level, "Applicable Rating Level" shall mean the
rating which is one level below the highest level issued by a Designated Rating
Agency.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
book manager.
"BA Discount Rate" means, in respect of a BA being accepted by a Lender on
any date, (i) for a Lender that is listed in Schedule I to the Bank Act
(Canada), the average bankers' acceptance rate as quoted on Reuters CDOR page
(or such other page as may, from time to time, replace such page on that service
for the purpose of displaying quotations for bankers' acceptances accepted by
leading Canadian financial institutions) at approximately 10:00 a.m. (Toronto,
Ontario time) on such drawdown date for bankers' acceptances having a comparable
maturity date as the maturity date of such BA (the "CDOR Rate"); or, if such
rate is not available at or about such time, the average of the bankers'
acceptance rates (expressed to five decimal places) as quoted to the Canadian
Agent by the Schedule I BA Reference Banks as of 10:00 a.m.
4
(Toronto, Ontario time) on such drawdown date for bankers' acceptances having a
comparable maturity date as the maturity date of such BA; and (ii) for a Lender
that is listed in Schedule II to the Bank Act (Canada) or a Lender that is
listed in Schedule III to the Bank Act (Canada) that is not subject to the
restrictions and requirements referred to in subsection 524 (2) of the Bank Act
(Canada), the rate established by the Canadian Agent to be the lesser of (A) the
CDOR Rate plus 10 Basis Points; and (B) the average of the bankers' acceptance
rates (expressed to five decimal places) as quoted to the Canadian Agent by the
Schedule II BA Reference Banks as of 10:00 a.m. (Toronto, Ontario time) on such
drawdown date for bankers' acceptances having a comparable maturity date as the
maturity date of such BA.
"Bankers' Acceptance" or "BA" means a Canadian Dollar draft of either
Canadian Borrower, for a term selected by such Canadian Borrower of either 30,
60, 90 or 180 days (as reduced or extended by the Lender, acting reasonably, to
allow the maturity thereof to fall on a Business Day) payable in Canada.
"Bank of America" means Bank of America, N.A.
"Bankruptcy and Insolvency Act (Canada)" means the Bankruptcy and
Insolvency Act, S.C. 1992, c. 27, including the regulations made and, from time
to time, in force under that Act.
"Basis Point" means one one-hundredth of one percent (0.01%).
"Borrower" means any of US Borrower and Canadian Borrowers.
"Borrowing" means a borrowing of new Loans of a single Type pursuant to
Section 1.2 or a Continuation or Conversion of existing Loans into a single Type
(and, in the case of Eurodollar Loans, with the same Interest Period) pursuant
to Section 1.3 of the US Agreement or the Canadian Agreement or the acceptance
or purchase of Bankers' Acceptances issued by Canadian Borrowers under the
Canadian Agreement or the Continuation or Conversion of existing Banker's
Acceptances into Canadian Loans of a single Type in the case of Eurodollar Loans
with the same Interest Period pursuant to Section 1.3 of the Canadian Agreement.
"Borrowing Notice" means a written or telephonic request, or a written
confirmation, made by any Borrower which meets the requirements of Section 1.2
of the US Agreement or Section 1.2 of the Canadian Agreement.
"Business Day" means (a) with respect to the Canadian Agreement, a day,
other than a Saturday or Sunday, on which commercial banks are open for business
with the public in ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and (b) with respect to
the US Agreement, a day, other than a Saturday or Sunday, on which commercial
banks are open for business with the public in Dallas, Texas. Any Business Day
in any way relating to Eurodollar Loans (such as the day on which an
5
Interest Period begins or ends) must also be a day on which, in the
judgment of US Agent or Canadian Agent, as applicable, significant transactions
in dollars are carried out in the interbank eurocurrency market.
"Canadian Advances" has the meaning given to such term in Section 1.1(a)
of the Canadian Agreement.
"Canadian Agent" means Bank of America, acting through its Canadian
Branch, and its successors and assigns as administrative agent under the
Canadian Agreement.
"Canadian Agreement" means that certain Amended and Restated Canadian
Credit Agreement dated the Closing Date among Canadian Borrowers, Canadian Agent
and Canadian Lenders and as it may be further amended, supplemented, restated or
otherwise modified and in effect from time to time.
"Canadian Base Rate Loan" means a Canadian Loan which bears interest at
the Canadian US Dollar Base Rate.
"Canadian Borrowers" means Northstar Energy and Devon Canada.
"Canadian Conversion Date" means the date which is 364 days after the
Closing Date, or such later day to which the Canadian Conversion Date is
extended pursuant to Section 1.6 of the Canadian Agreement.
"Canadian Dollar" or "C$" means the lawful currency of Canada.
"Canadian Dollar Eurodollar Loan" means a Canadian Loan that bears
interest at the Adjusted Canadian Dollar Eurodollar Rate.
"Canadian Dollar Eurodollar Rate" means, for any Canadian Dollar
Eurodollar Loan within a Borrowing and with respect to the related Interest
Period therefor, (a) the interest rate per annum (carried out to the fifth
decimal place) equal to the rate determined by the Canadian Agent to be the
offered rate that appears on the page of the Telerate Screen (or any successor
thereto) that displays an average British Bankers Association Interest
Settlement Rate (such page currently being page number 3740) for deposits in
Canadian Dollars (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately 11:00
a.m. (London time) two Business Days prior to the first day of such Interest
Period, or (b) in the event the rate referenced in the preceding subsection (a)
does not appear on such page or service or such page or service shall cease to
be available, the rate per annum (carried out to the fifth decimal place) equal
to the rate determined by the Canadian Agent to be the offered rate on such
other page or other service that displays an average British Bankers Association
Interest Settlement Rate for deposits in Canadian Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, or (c) in the event the
rates referenced in the preceding subsections (a) and (b) are not available, the
rate per annum determined by the Canadian Agent as the rate of interest at which
deposits in Canadian Dollars (for delivery on the first day of such Interest
Period) in same day funds in the approximate amount of the applicable Canadian
Dollar Eurodollar Loan and with a term equivalent to such Interest Period would
be offered by its London branch to major banks in
6
the London interbank Canadian Dollar market at their request at approximately
4:00 p.m. (London time) two Business Days prior to the first day of such
Interest Period.
"Canadian Facility Fee Rate" means, on any date, the number of Basis
Points per annum set forth below based on the Applicable Rating Level on such
date:
Applicable Applicable Canadian
Rating Level Facility Fee Rate
------------ -------------------
▇▇▇▇▇ ▇ ▇▇.▇
▇▇▇▇▇ ▇▇ ▇▇.▇
▇▇▇▇▇ ▇▇▇ 15.0
Level IV 17.5
Level V 25.0
"Canadian Facility Maturity Date" means the date which is five years and
one day after the Canadian Conversion Date.
"Canadian Facility Usage" means, at the time in question, the US Dollar
Equivalent of the aggregate amount of Canadian Loans, Canadian LC Obligations,
and BA's outstanding at such time.
"Canadian Guarantors" means US Borrower and Devon Financing ULC.
"Canadian LC Issuer" means Bank of America in and its successors and
assigns in its capacity as the issuer of Letters of Credit under the Canadian
Agreement. Canadian Agent may, with the consent of Canadian Borrowers and the
Lender in question, appoint any Canadian Resident Lender hereunder as a Canadian
LC Issuer in place of or in addition to Canadian Agent.
"Canadian LC Obligations" means, at the time in question, the sum of all
Matured Canadian LC Obligations plus the maximum amounts which Canadian LC
Issuer might then or thereafter be called upon to advance under all Letters of
Credit then outstanding under the Canadian Agreement.
"Canadian LC Sublimit" means US $125,000,000.
"Canadian Lenders" means each signatory to the Canadian Agreement (other
than any Borrower), including Bank of America, acting through its Canadian
branch, in the capacity of a Canadian Lender and the Canadian Swing Lender
hereunder, rather than as Canadian Agent and Canadian LC Issuer, and the
successors of each such party as holder of a Canadian Note.
7
"Canadian Loan Documents" means the Canadian Agreement, the Canadian
Notes, the Letters of Credit issued under the Canadian Agreement, the LC
Applications related thereto, the BA's, the Guaranty executed by each Canadian
Guarantor, and all other agreements, certificates, documents, instruments and
writings at any time delivered in connection herewith or therewith (exclusive of
term sheets and commitment letters).
"Canadian Loans" means the Canadian Revolving Loans, the Canadian Term
Loans into which such Canadian Revolving Loans may be converted, the Competitive
Bid Loans made under the Canadian Agreement, the Canadian Swing Loans, and the
Overterm Canadian Loans.
"Canadian Majority Lenders" means Canadian Lenders whose aggregate
Percentage Shares under the Canadian Agreement exceed sixty-six and two thirds
percent (66 2/3%).
"Canadian Maximum Credit Amount" means US $275,000,000 on the Closing
Date, as increased or decreased thereafter pursuant to Section 1.9 of the US
Credit Agreement or Section 1.12 of the Canadian Agreement, but in no event
greater than $375,000,000 or less than $175,000,000, or the Canadian Dollar
Exchange Equivalent.
"Canadian Notes" means each Lender's "Canadian Note", as defined in
Section 1.1(a) of the Canadian Agreement, the Competitive Bid Notes issued under
the Canadian Agreement, and the Canadian Swing Notes.
"Canadian Obligations" means the aggregate Liabilities from time to time
owing by each Canadian Borrower to any Lender Party under or pursuant to any of
the Canadian Loan Documents, including all Canadian LC Obligations owing
thereunder. "Canadian Obligation" means any part of the Canadian Obligations.
"Canadian Overterm Facility Usage" means, at the time in question, the US
Dollar Equivalent of the aggregate amount of Overterm Canadian Loans and
Canadian LC Obligations in respect of Overterm Canadian LCs at such time.
"Canadian Prime Rate" means on any day a fluctuating rate of interest per
annum equal to the higher of (i) the rate of interest per annum most recently
announced by Canadian Agent as its reference rate for Canadian Dollar commercial
loans made to a Person in Canada; and (ii) Canadian Agent's Discount Rate for
Bankers' Acceptances having a maturity of thirty days plus the Applicable
Margin. No Canadian Prime Rate charged by any Person shall ever exceed the
Highest Lawful Rate.
"Canadian Prime Rate Loan" means a Canadian Loan that bears interest at
the Canadian Prime Rate.
"Canadian Re-allocation" has the meaning given it in Section 1.9 of the US
Agreement.
"Canadian Required Lenders" means Canadian Lenders whose aggregate
Percentage Shares under the Canadian Agreement exceed fifty percent (50%).
8
"Canadian Resident Lender" means each Lender identified as such on Annex
II to the Canadian Agreement or any Assignment and Acceptance executed by a new
Lender, each being a Person that is (i) not a non-resident of Canada for the
purposes of the Income Tax Act (Canada) or (ii) a Person that is an "authorized
foreign bank" as defined in section 2 of the Bank Act (Canada) and in subsection
248(1) of the Income Tax Act (Canada) which will receive all amounts paid or
credited to it under the Canadian Obligations in respect of its "Canadian
banking business" for the purposes of paragraph 212(13.3)(a)of the Income Tax
Act (Canada).
"Canadian Revolving Loans" has the meaning given it in Section 1.1(a) of
the Canadian Agreement.
"Canadian Revolving Period" means the period from and including the
Closing Date until the Canadian Conversion Date (or, if earlier, the day on
which the obligations of Lenders to make Canadian Loans or the obligations of
Canadian LC Issuer to issue Letters of Credit under the Canadian Agreement have
been terminated or the Canadian Notes first become due and payable in full).
"Canadian Swing Lender" means Bank of America and its successors and
assigns, in their individual capacities, as Canadian Swing Lenders.
"Canadian Swing Loans" has the meaning given it in Section 1.1(b) of the
Canadian Agreement.
"Canadian Swing Notes" has the meaning given it in Section 1.1(b) of the
Canadian Agreement.
"Canadian Swing Rate" means on any day a fluctuating rate of interest per
annum established from time to time by Canadian Swing Lender as its money market
rate, which rate may not be the lowest rate of interest charged by Canadian
Swing Lender to its customers, plus the Applicable Margin. The Canadian Swing
Rate shall never exceed the Highest Lawful Rate.
"Canadian Swing Sublimit" means US $25,000,000.
"Canadian Term Loan" has the meaning given it in Section 1.7 of the
Canadian Agreement.
"Canadian Term Period" means the period from and including the day
immediately following the Canadian Conversion Date until and including the
Canadian Facility Maturity Date.
"Canadian US Dollar Base Rate" means for a day, the rate per annum equal
to the higher of (a) the Federal Funds Rate for such day plus one-half of one
percent (0.5%) and (b) the rate of interest per annum most recently established
by Canadian Agent as its reference rate for US Dollar commercial loans made to a
Person in Canada. Any change in the Canadian US Dollar Base Rate due to a change
in the Canadian Agent's reference rate shall be effective on the effective date
of such change. No Canadian US Dollar Base Rate charged by any Person shall ever
exceed the Highest Lawful Rate.
9
"Cash Equivalents" means Investments in:
(a) marketable obligations, maturing within twelve months after
acquisition thereof, issued or unconditionally guaranteed by Canada
or the United States of America or an instrumentality or agency
thereof and entitled to the full faith and credit of Canada or the
United States of America, as applicable;
(b) demand deposits, and time deposits (including certificates of
deposit) maturing within twelve months from the date of deposit
thereof, with a domestic office (1) of US Agent or Canadian Agent or
any Lender, or (2) of any bank or trust company organized under the
laws of Canada or the United States of America or any Province or
State therein, provided that (x) the full amount of each such
deposit in such bank or trust company is insured by the Federal
Deposit Insurance Corporation if applicable, or (y) such bank or
trust company has capital, surplus and undivided profits aggregating
at least US $50,000,000, and
(c) (1) publicly traded debt securities with an original term of 270
days or less or (2) interest bearing securities issued to the public
by banks, associated entities or similar institutions, which can be
put to the issuer at the investor's unconditional option within one
month after acquisition, so long as in each case such securities
have a credit rating of at least A-1 from S&P or P-1 from ▇▇▇▇▇'▇ or
A-1 [low] from CBRS or R-1 [low] from DBRS.
"CBRS" means CBRS Inc., or its successor.
"Change of Control" means the occurrence of either of the following
events: (i) any Person (or syndicate or group of Persons which is deemed a
"person" for the purposes of Section 13(d)(3) of the Securities Exchange Act of
1934, as amended) acquires more than fifty percent (50%) of the outstanding
stock of US Borrower having ordinary voting power (disregarding changes in
voting power based on the occurrence of contingencies) for the election of
directors, or (ii) during any period of twelve successive months a majority of
the Persons who were directors of US Borrower at the beginning of such period
cease to be directors of US Borrower, unless such cessation relates to a
voluntary reduction by US Borrower of the number of directors that comprise the
board of directors of US Borrower.
"Closing Date" means June 7, 2002.
"Companies' Creditors Arrangement Act (Canada)" means the Companies'
Creditors Arrangement Act, R.S.C. 1985, c. C-36, including the regulations made
and from time to time in force under that Act.
"Competitive Bid" means (i) with respect to the US Agreement, a response
from any Lender to an Invitation to Bid, substantially in the form of Exhibit J
to the US Agreement and (ii) with respect to the Canadian Agreement, a response
from any Canadian Resident Lender to an Invitation to Bid, substantially in the
form of Exhibit K to the Canadian Agreement.
10
"Competitive Bid Accept/Reject Letter" means (i) with respect to the US
Agreement, a notice sent by US Borrower to US Agent, substantially in the form
of Exhibit K to the US Agreement, indicating its acceptance or rejection of
Competitive Bids from various Lenders and (ii) with respect to the Canadian
Agreement, a notice sent by the applicable Canadian Borrower to Canadian Agent,
substantially in the form of Exhibit L to the Canadian Agreement, indicating its
acceptance or rejection of Competitive Bids from various Lenders.
"Competitive Bid Interest Period" means, with respect to any Competitive
Bid Loan, a period from one day to one hundred eighty days as specified in the
Competitive Bid applicable thereto.
"Competitive Bid Loan" means (i) with respect to the US Agreement, a loan
from a US Lender to US Borrower pursuant to the bidding procedure described in
Section 1.7 of the US Agreement and (ii) with respect to the Canadian Agreement,
a loan from a Canadian Resident Lender to the applicable Canadian Borrower
pursuant to the bidding procedure described in Section 1.9 of the Canadian
Agreement.
"Competitive Bid Note" (i) with respect to the US Agreement, a
"Competitive Bid Note" as defined in Section 1.7 of the US Agreement and (ii)
with respect to the Canadian Agreement, a "Competitive Bid Note" as defined in
Section 1.9 of the Canadian Agreement.
"Competitive Bid Rate" means, for any Competitive Bid Loan, the fixed rate
at which such Lender is willing to make such Competitive Bid Loan indicated in
its Competitive Bid. The Competitive Bid Rate shall in no event, however, exceed
the Highest Lawful Rate.
"Competitive Bid Request" means (i) with respect to the US Agreement, a
request by US Borrower in the form of Exhibit H to the US Agreement for Lenders
to submit Competitive Bids and (ii) with respect to the Canadian Agreement, a
request by the applicable Canadian Borrower in the form of Exhibit I to the
Canadian Agreement for Canadian Resident Lenders to submit Competitive Bids.
"Consolidated" refers to the consolidation of any Person, in accordance
with US GAAP, with its properly consolidated subsidiaries. References herein to
a Person's Consolidated financial statements, financial position, financial
condition, liabilities, etc. refer to the consolidated financial statements,
financial position, financial condition, liabilities, etc. of such Person and
its properly consolidated subsidiaries.
"Consolidated Assets" means the total assets of US Borrower and its
Restricted Subsidiaries which would be shown as assets on a Consolidated balance
sheet of US Borrower and its Restricted Subsidiaries prepared in accordance with
US GAAP, after eliminating all amounts properly attributable to minority
interest, if any, in the stock and surplus of the Restricted Subsidiaries.
"Continuation" (i) as used in the US Agreement shall refer to the
continuation pursuant to Section 1.3 thereof of a Eurodollar Loan as a
Eurodollar Loan from one Interest Period to the
11
next Interest Period and (ii) as used in the Canadian Agreement shall refer to
the continuation pursuant to Section 1.3 thereof of a Eurodollar Loan as a
Eurodollar Loan from one Interest Period to the next Interest Period or a
rollover of a Banker's Acceptance at maturity.
"Continuation/Conversion Notice" means (i) with respect to the US
Agreement, a written or telephonic request, or a written confirmation, made by
Borrower which meets the requirements of Section 1.3 of the US Agreement, and
(ii) with respect to the Canadian Agreement, a written or telephonic request, or
a written confirmation, made by the applicable Canadian Borrower which meets the
requirements of Section 1.3 of the Canadian Agreement.
"Conversion" (i) as used in the US Agreement shall refer to a conversion
pursuant to Section 1.3 or Article III of one Type of US Loan into another Type
of US Loan and (ii) as used in the Canadian Agreement shall refer to a
conversion pursuant to Section 1.3 or Article III of one Type of Canadian
Advance into another Type of Canadian Advance.
"DBRS" means Dominion Bond Rating Service Limited, or its successor.
"Default" means any Event of Default and any default, event or condition
which would, with the giving of any requisite notices and the passage of any
requisite periods of time, constitute an Event of Default.
"Default Rate" means at the time in question (i) with respect to any US
Base Rate Loan, the rate two percent (2%) per annum above the US Base Rate then
in effect, (ii) with respect to any US Dollar Eurodollar Loan, the rate two
percent (2%) per annum above the Adjusted US Dollar Eurodollar Rate then in
effect for such Loan, (iii) with respect to any Canadian Prime Rate Loan, the
rate two percent (2%) per annum above the Canadian Prime Rate then in effect for
such Loan, (iv) with respect to any Canadian Base Rate Loan, the rate two
percent (2%) per annum above the Canadian US Dollar Base Rate then in effect for
such Loan, (v) with respect to any Canadian Dollar Eurodollar Loan, the rate two
percent (2%) per annum above the Adjusted Canadian Dollar Eurodollar Rate then
in effect for such Loan; (vi) with respect to any Competitive Bid Loan, the rate
two percent (2%) per annum above the Competitive Bid Rate then in effect for
such Loan; (vii) with respect to any US Swing Loan, the rate two percent (2%)
per annum above the US Swing Rate then in effect for such Loan; and (viii) with
respect to any Canadian Swing Loan, the rate two percent (2%) per annum above
the Canadian Swing Rate then in effect for such Loan. No Default Rate charged by
any Person shall ever exceed the Highest Lawful Rate.
"Depository Bills and Notes Act (Canada)" means the Depository Bills and
Notes Act (Canada), R.S.C. 1998, c. 13, including the regulations made and, from
time to time, in force under that Act.
"Devon Canada" means Devon Canada Corporation, an Alberta corporation and
successor to ▇▇▇▇▇▇▇▇ Exploration Ltd.
"Devon Financing ULC" means Devon Financing Corporation, U.L.C., a Nova
Scotia unlimited liability company.
12
"Devon Financing ULC Guaranties" means the Guaranty executed by Devon
Financing ULC and delivered to Canadian Agent pursuant to the Canadian Agreement
and the Guaranty executed by Devon Financing ULC and delivered to US Agent
pursuant to the US Agreement.
"Devon Nevada" means Devon Energy Corporation (Nevada), a Nevada
corporation.
"Devon Oklahoma" means Devon Energy Corporation (Oklahoma), an Oklahoma
corporation, formerly known as Devon Energy Corporation, an Oklahoma
corporation.
"Devon SFS" means Devon SFS Operating, Inc., a Delaware corporation.
"Devon Trust" means Devon Financing Trust II, a statutory business trust
formed under the laws of the State of Delaware.
"Devon Trust Registration Statement" means the Registration Statement on
Form S-3 filed by US Borrower under the Securities Act of 1933 on November 16,
2000 with respect to the issuance by US Borrower of Common Stock, Preferred
Stock, Debt Securities, Stock Purchase Agreements and Stock Purchase Units, and
the issuance by Devon Financing Trust II of Trust Preferred Securities
guaranteed by US Borrower, as amended and supplemented from time to time.
"Devon Trust Securities" means those certain Trust Preferred Securities,
which may be issued by Devon Trust pursuant to the Registration Statement in an
aggregate face amount not to exceed $447,261,200.
"Disclosure Report" means a written notice given by US Borrower to all
Lender Parties or a certificate given by the Senior Vice President-Finance or
the Treasurer of US Borrower under Sections 6.2(a) and (b).
"Disclosure Schedule" means (i) with respect to the US Agreement, Schedule
1 thereto, and (ii) with respect to the Canadian Agreement, Schedule 1 thereto.
"Discount Proceeds" means, in respect of each Bankers' Acceptance, funds
in an amount which is equal to:
Face Amount
-----------
1 + (Rate x Term)
-------------
365
(where "Face Amount" is the principal amount of the Bankers' Acceptance being
purchased, "Rate" is the BA Discount Rate divided by 100 and "Term" is the
number of days in the term of the Bankers' Acceptance.)
"Distribution" means (a) any dividend or other distribution made by a
Restricted Person on or in respect of any stock, partnership interest, or other
equity interest in such Restricted Person (including any option or warrant to
buy such an equity interest), or (b) any payment made by a
13
Restricted Person to purchase, redeem, acquire or retire any stock, partnership
interest, or other equity interest in such Restricted Person (including any such
option or warrant).
"Domestic Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "Domestic Lending Office" below its name on Annex
II to the Canadian Agreement or the US Agreement, or such other office as such
Lender may from time to time specify to any Borrower and US Agent; with respect
to US LC Issuer or Canadian LC Issuer, the office, branch, or agency through
which it issues Letters of Credit; and, with respect to US Agent, the office,
branch, or agency through which it administers this Agreement.
"Eligible Assignee" means a Person which either (a) is a Lender or an
Affiliate of a Lender, (b) an Approved Fund or (c) is consented to as an
Eligible Assignee by US Agent or Canadian Agent, as applicable, and, so long as
no Default or Event of Default is continuing, by the Borrowers, in each case
which consent will not be unreasonably withheld; provided that the Borrowers'
consent shall not be required for a Person to be an "Eligible Assignee" for
purposes of Section 10.6(d) of the US Agreement and Section 10.6(d) of the
Canadian Agreement. As used in this definition, "Fund" means any Person (other
than a natural Person) that is (or will be) engaged in making, purchasing,
holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business, and "Approved Fund" means any
Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a
Lender or (c) an entity or an Affiliate of an entity that administers or manages
a Lender.
"Environmental Laws" means any and all Laws relating to the environment or
to emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes
into the environment including ambient air, surface water, ground water, or
land, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, together with all rules and regulations promulgated
with respect thereto.
"ERISA Affiliate" means US Borrower and all members of a controlled group
of corporations and all trades or businesses (whether or not incorporated) under
common control
that, together with US Borrower, are treated as a single employer under
Section 414 of the Internal Revenue Code.
"ERISA Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to Title IV of ERISA maintained by any ERISA
Affiliate with respect to which any Restricted Person has a fixed or contingent
liability.
"Eurodollar Interest Period" means, with respect to each particular
Eurodollar Loan in a Borrowing, the period specified in the Borrowing Notice or
Continuation/Conversion Notice applicable thereto, beginning on and including
the date specified in such Borrowing Notice or Continuation/Conversion Notice
(which must be a Business Day), and ending one, two, three, or six months
thereafter, as the applicable Borrower may elect in such notice; provided that:
(a) any
14
Interest Period which would otherwise end on a day which is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day
falls in another calendar month, in which case such Interest Period shall end on
the next preceding Business Day; (b) any Interest Period which begins on the
last Business Day in a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day in a calendar month; and (c)
notwithstanding the foregoing, any Interest Period for Tranche A Loans which
would otherwise end after the last day of the Tranche A Commitment Period shall
end on the last day of the Tranche A Commitment Period, any Interest Period for
Tranche B Loans which would otherwise end after the Tranche B Maturity Date
shall end on the Tranche B Maturity Date, any Interest Period for Canadian Loans
which would otherwise end after the Canadian Facility Maturity Date shall end on
the Canadian Facility Maturity Date (or, if the last day of such period is not a
Business Day, on the next preceding Business Day).
"Eurodollar Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "Eurodollar Lending Office" below its name on
Annex II to the Canadian Agreement or the US Agreement (or, if no such office is
specified, its Domestic Lending Office), or such other office of such Lender as
such Lender may from time to time specify to Borrowers, Canadian Agent, and US
Agent.
"Eurodollar Loan" means any Canadian Dollar Eurodollar Loan and any US
Dollar Eurodollar Loan.
"Event of Default" means (i) with respect to the US Agreement the meaning
given to such term in Section 8.1 thereof and (ii) with respect to the Canadian
Agreement the meaning given to such term in Section 8.1 thereof.
"Exchange Equivalent" in respect of one currency (the "Original
Currency"), being Canadian Dollars or U.S. Dollars, as the case may be, means,
at the date of determination, the amount of currency expressed in the other such
currency necessary to purchase, based on the Noon Rate on such date, the
specified amount of the Original Currency on such date.
"Existing Canadian Agreement" means that certain Canadian Credit Agreement
dated as of August 29, 2000 among Northstar Energy, Canadian Agent, and certain
lenders named therein, as amended, supplemented or otherwise modified prior to
the Closing Date.
"Existing US Agreement" means that certain US Credit Agreement dated as of
August 29, 2000 among US Borrower, US Agent, and certain lenders named therein,
as amended, supplemented or otherwise modified prior to the Closing Date.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100th of one percent) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day, provided that (i) if the day for which such rate is to be
determined is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions
15
on the next preceding Business Day as so published on the next succeeding
Business Day, and (ii) if such rate is not so published for any day, the Federal
Funds Rate for such day shall be the average rate (rounded upwards, if
necessary, to the nearest 1/100th of one percent) quoted to US Agent on such day
on such transactions as determined by US Agent.
"Fiscal Quarter" means a three-month period ending on March 31, June 30,
September 30 or December 31 of any year.
"Fiscal Year" means a twelve-month period ending on December 31 of any
year.
"Governmental Authority" means any domestic or foreign, national, federal,
provincial, state, municipal or other local government or body and any division,
agency, ministry, commission, board or authority or any quasi-governmental or
private body exercising any statutory, regulatory, expropriation or taxing
authority under the authority of any of the foregoing, and any domestic, foreign
or international judicial, quasi-judicial, arbitration or administrative court,
tribunal, commission, board or panel acting under the authority of any of the
foregoing.
"Hazardous Materials" means any substances regulated under any
Environmental Law, whether as pollutants, contaminants, or chemicals, or as
industrial, toxic or hazardous substances or wastes, or otherwise.
"Hedging Contract" means (a) any agreement providing for options, swaps,
floors, caps, collars, forward sales or forward purchases involving interest
rates, commodities or commodity prices, equities, currencies, bonds, or indexes
based on any of the foregoing, (b) any option, futures or forward contract
traded on an exchange, and (c) any other derivative agreement or other similar
agreement or arrangement.
"Highest Lawful Rate" means, with respect to each Lender Party to whom
Obligations are owed, the maximum nonusurious rate of interest that such Lender
Party is permitted under applicable Law to contract for, take, charge, or
receive with respect to such Obligations. All
determinations herein of the Highest Lawful Rate, or of any interest rate
determined by reference to the Highest Lawful Rate, shall be made separately for
each Lender Party as appropriate to assure that the Loan Documents are not
construed to obligate any Person to pay interest to any Lender Party at a rate
in excess of the Highest Lawful Rate applicable to such Lender Party.
"Income Tax Act (Canada)" means the Income Tax Act, R.S.C. 1985 c.1 (5th
Supp), including the regulations made and, from time to time, in force under
that Act.
"Indebtedness" of any Person means Liabilities in any of the following
categories:
(a) Liabilities for borrowed money,
(b) Liabilities constituting an obligation to pay the deferred purchase
price of property or services, other than customary payment terms
taken in the ordinary course of such Person's business,
16
(c) Liabilities evidenced by a bond, debenture, note or similar
instrument;
(d) Liabilities arising under conditional sales or other title retention
agreements or under leases capitalized in accordance with US GAAP,
but excluding customary oil, gas or mineral leases and operating
leases,
(e) Liabilities with respect to payments received in consideration of
oil, gas, or other minerals yet to be acquired or produced at the
time of payment (including obligations under "take-or-pay" contracts
to deliver gas in return for payments already received and the
undischarged balance of any production payment created by such
Person or for the creation of which such Person directly or
indirectly received payment);
(f) Liabilities under Hedging Contracts,
(g) Liabilities with respect to letters of credit or applications or
reimbursement agreements therefor, or
(h) Liabilities under direct or indirect guaranties of Liabilities of
any Person or constituting obligations to purchase or acquire or to
otherwise protect or insure a creditor against loss in respect of
Indebtedness of the types described in paragraphs (a) through (g)
above of any Person (such as obligations under working capital
maintenance agreements, agreements to keep-well, or agreements to
purchase debt, assets, goods, securities or services, but excluding
endorsements in the ordinary course of business of negotiable
instruments in the course of collection),
provided, however, that the "Indebtedness" of any Person shall not include
Liabilities that were incurred by such Person on ordinary trade terms to
vendors, suppliers, or other Persons providing goods and services for use by
such Person in the ordinary course of its business, unless and until such
Liabilities are outstanding more than 90 days past the original invoice or
billing date therefor. Any Indebtedness owed by a partnership shall be deemed
Indebtedness of any partner in such partnership to the extent such partner has
any liability of any kind therefor.
"Initial Financial Statements" means (i) the audited annual Consolidated
financial statements of US Borrower dated as of December 31, 2001, and (ii) the
unaudited quarterly Consolidated financial statements of US Borrower dated as of
▇▇▇▇▇ ▇▇, ▇▇▇▇.
"▇▇▇▇▇▇▇▇ ▇▇▇ (▇▇▇▇▇▇)" means the Interest Act, R.S.C. 1985, c. I-15,
including the regulations made and, from time to time, in force under that Act.
"Interest Payment Date" means (a) with respect to each US Base Rate Loan,
Canadian US Dollar Base Rate Loan, Canadian Prime Rate Loan, Canadian Swing
Loan, and US Swing Loan the last day of each March, June, September and December
beginning September 30, 2000, and (b) with respect to each Eurodollar Loan, the
last day of the Eurodollar Interest Period that is applicable thereto and, if
such Eurodollar Interest Period is six months in length, the date specified
17
by US Agent which is approximately three months after such Eurodollar Interest
Period begins; provided that the last day of each calendar month shall also be
an Interest Payment Date for each such Loan so long as any Event of Default
exists under Section 8.1 (a) or (b).
"Interest Period" means (i) with respect to any Eurodollar Loan, the
related Eurodollar Interest Period and (ii) with respect to any Competitive Bid
Loan, the related Competitive Bid Interest Period.
"Internal Revenue Code" means the United States Internal Revenue Code of
1986, as amended from time to time and any successor statute or statutes.
"Investment" means any investment made directly or indirectly, in any
Person, whether by acquisition of shares of capital stock, indebtedness or other
obligations or securities or by loan, advance, capital contribution or otherwise
and whether made in cash, by the transfer of property, or by any other means.
"Invitation to Bid" means (i) with respect to the US Agreement, an
invitation by US Agent to each Lender, substantially in the form of Exhibit I
thereto, inviting such Lender to submit Competitive Bids in response to a
Competitive Bid Request under the US Agreement, and (ii) with respect to the
Canadian Agreement, an invitation by Canadian Agent to each Lender,
substantially in the form of Exhibit J thereto, inviting such Lender to submit
Competitive Bids in response to a Competitive Bid Request under the Canadian
Agreement.
"Judgment Interest Act (Alberta)" means the Judgment Interest Act, R.S.A.
2000, c. J-1, including the regulations made and, from time to time, in force
under that Act.
"Law" means any statute, law, regulation, ordinance, rule, treaty,
judgment, order, decree, permit, concession, franchise, license, agreement or
other governmental restriction of the United
States or Canada or any state, province or political subdivision thereof
or of any foreign country or any department, province or other political
subdivision thereof.
"LC Application" means any application for a Letter of Credit hereafter
made by any Borrower to US LC Issuer or Canadian LC Issuer.
"LC Collateral" (i) as used in the US Agreement, has the meaning given to
such term in Section 2.6 of the US Agreement and (ii) as used in the Canadian
Agreement, has the meaning given such term in Section 2.11 of the Canadian
Agreement.
"Lender Parties" means US Agent, US LC Issuer, Canadian Agent, Canadian LC
Issuer, and all Lenders.
"Lenders" means, collectively, the US Lenders and the Canadian Lenders.
"Lenders Schedule" means Annex II to the US Agreement and Annex II to the
Canadian Agreement which are the same.
18
"Letter of Credit" means any letter of credit issued by US LC Issuer under
the US Agreement or the Existing US Agreement or by Canadian LC Issuer under the
Canadian Agreement or the Existing Canadian Agreement at the application of any
Borrower.
"Liabilities" means, as to any Person, all indebtedness, liabilities and
obligations of such Person, whether matured or unmatured, liquidated or
unliquidated, primary or secondary, direct or indirect, absolute, fixed or
contingent, and whether or not required to be considered pursuant to US GAAP.
"Lien" means, with respect to any property or assets, any lien, mortgage,
security interest, pledge, deposit, production payment, rights of a vendor under
any title retention or conditional sale agreement or lease substantially
equivalent thereto, tax lien, mechanic's or materialman's lien, or any other
charge or encumbrance for security purposes, whether arising by Law or agreement
or otherwise, but excluding any right of offset. "Lien" also means any filed
financing statement, any registration of a pledge (such as with an issuer of
uncertificated securities), or any other arrangement or action which would serve
to perfect a Lien described in the preceding sentence, regardless of whether
such financing statement is filed, such registration is made, or such
arrangement or action is undertaken before or after such Lien exists.
"Loan Documents" means, collectively, the Canadian Loan Documents and the
US Loan Documents.
"Loans" means, collectively, the Canadian Loans and the US Loans.
"Majority Lenders" means, collectively, US Majority Lenders and Canadian
Majority Lenders.
"Margin Stock" means "margin stock" as defined in Reg U.
"Material Adverse Effect" means any event which would reasonably be
expected to have a material and adverse effect upon (a) US Borrower's
Consolidated financial condition, (b) US Borrower's Consolidated operations,
properties or prospects, considered as a whole, (c) US Borrower's ability to
timely pay the Obligations, or (d) the enforceability of the material terms of
any Loan Documents.
Material Subsidiary" means a Subsidiary of US Borrower which owns assets
having a book value that exceeds ten percent (10%) of the book value of US
Borrower's Consolidated assets.
"Matured Canadian LC Obligations" means all amounts paid by Canadian LC
Issuer on drafts or demands for payment drawn or made under or purported to be
under any Letter of Credit issued under the Canadian Agreement and all other
amounts due and owing to Canadian LC Issuer under any LC Application for any
such Letter of Credit, to the extent the same have not been repaid to Canadian
LC Issuer (with the proceeds of Loans or otherwise).
19
"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
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 Letter of Credit, to
the extent the same have not been repaid to US LC Issuer (with the proceeds of
Loans or otherwise).
"Maximum Canadian Drawing Amount" means at the time in question the sum of
the maximum amounts which Canadian LC Issuer might then or thereafter be called
upon to advance under all Letters of Credit issued pursuant to the Canadian
Agreement which are then outstanding.
"Maximum US Drawing Amount" means at the time in question the sum of the
maximum amounts which US LC Issuer might then or thereafter be called upon to
advance under all Letters of Credit issued pursuant to the US Agreement which
are then outstanding.
"Moody's" means ▇▇▇▇▇'▇ Investor Service, Inc., or its successor.
"Multiemployer Plan" mean a multiemployer plan within the meaning of
Section 4001(a)(3) of ERISA to which any ERISA Affiliate is making or is
obligated to make contributions or, during the five preceding plan years, has
made or has been obligated to make contributions.
"Net Proceeds" means with respect to any Bankers' Acceptance, the Discount
Proceeds less the amount equal to the applicable Stamping Fee Rate multiplied by
the face amount of such Bankers' Acceptance.
"Non-resident Lender" means any Lender which is not a Canadian Resident
Lender, and shall initially mean each Lender identified as such on Annex II to
the Canadian Agreement or thereafter on any Assignment and Acceptance.
"Noon Rate" means, in relation to the conversion of one currency into
another currency, the rate of exchange for such conversion as quoted by the Bank
of Canada (or, if not so quoted, the spot rate of exchange quoted for wholesale
transactions made by Canadian Agent at Toronto, Ontario at approximately noon
(Toronto, Ontario local time)).
"Northstar Energy" means Northstar Energy Corporation, an amalgamated
Alberta corporation.
"Notes" mean, collectively, the Canadian Notes and the US Notes.
"Obligations" means, collectively, the US Obligations and the Canadian
Obligations.
"Offer of Extension" means (a) with respect to the Canadian Agreement, a
written offer by Canadian Agent, for and on behalf of Required Lenders, to
Canadian Borrowers to extend the Canadian Facility Revolving Period to a date
364 days from acceptance by Canadian Borrowers of such offer, and setting forth,
if applicable, the terms and conditions on which such extension is
20
offered by the Lenders and as may be accepted by Canadian Borrowers, and (b)
with respect to the US Agreement, a written offer by US Agent, for and on behalf
of Required Lenders, to US Borrower to extend the Tranche B Revolving Period to
a date 364 days from acceptance by US Borrower of such offer, and setting forth,
if applicable, the terms and conditions on which such extension is offered by
the Lenders and as may be accepted by US Borrower.
"Overterm Canadian LC" means any Letter of Credit having an expiration
date falling on or after the then current Canadian Conversion Date.
"Overterm Canadian Loan" has the meaning given it in Section 2.8(a)(ii) of
the Canadian Agreement.
"PennzEnergy Debentures" means the following Debentures of PennzEnergy
Company, which were issued prior to the merger of PennzEnergy Company with and
into US Borrower:
(a) 10.125% Debentures due November 15, 2009 in the aggregate principal
amount of US $200,000,000;
(b) 10.25% Debentures due November 1, 2005 in the aggregate principal
amount of US $250,000,000;
(c) the PennzEnergy Exchangeable Debentures.
"PennzEnergy Exchangeable Debentures" means the following Exchangeable
Debentures of PennzEnergy Company, which were issued prior to the merger of
PennzEnergy Company with and into US Borrower:
(a) 4.90% Exchangeable Senior Debentures due August 15, 2008 in the
aggregate principal amount of US $443,807,000; and
(b) 4.95% Exchangeable Senior Debentures due August 15, 2008 in the
aggregate principal amount of US $316,506,000.
"Percentage Share" means
(a) under the US Agreement with respect to any Lender (i) when used in
Article I of the US Agreement, in any Borrowing Notice thereunder or
when no US Loans are outstanding, the percentage set forth opposite
such Lender's name on the Lenders Schedule as modified by
assignments of a 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 sum of the unpaid principal balance of
such Lender's US Loans and such Lender's Percentage Share of the US
LC Obligations, by (y) the sum of the aggregate unpaid principal
balance of all US Loans at such time plus the aggregate amount of
all US LC Obligations outstanding at such time; and
21
(b) under the Canadian Agreement with respect to any Lender (i) when
used in Article I of the Canadian Agreement except when used in
Section 1.5(c) thereof with respect to utilization fees, in Article
II of the Canadian Agreement prior to the Canadian Conversion Date,
in any Borrowing Notice thereunder or when no Canadian Advances are
outstanding, the percentage set forth opposite such Lender's name on
the Lenders Schedule as modified by assignments of a Lender's rights
and obligations under the Canadian Agreement made by or to such
Lender in accordance with the terms of the Canadian Agreement, and
(ii) when used otherwise, the percentage obtained by dividing (x)
the sum of the unpaid principal balance of such Lender's Canadian
Advances and such Lender's Percentage Share of the Canadian LC
Obligations, by (y) the sum of the aggregate unpaid principal
balance of all Canadian Advances at such time plus the aggregate
amount of all Canadian LC Obligations outstanding at such time.
"Permitted Liens" means:
(a) Liens for taxes, assessments or governmental charges which are not
due or delinquent, or the validity of which US Borrower or any
Restricted Subsidiary shall be contesting in good faith; provided US
Borrower or such Restricted Subsidiary shall have made adequate
provision therefor in accordance with US GAAP;
(b) the Lien of any judgment rendered, or claim filed, against US
Borrower or any Restricted Subsidiary which does not constitute an
Event of Default and which US Borrower or any such Restricted
Subsidiary shall be contesting in good faith; provided US Borrower
or such Restricted Subsidiary shall have made adequate provision
therefor in accordance with US GAAP;
(c) Liens, privileges or other charges imposed or permitted by law such
as statutory liens and deemed trusts, carriers' liens, builders'
liens, materialmens' liens and other liens, privileges or other
charges of a similar nature which relate to obligations not due or
delinquent, including any lien or trust arising in connection with
workers' compensation, unemployment insurance, pension, employment
and similar laws or regulations;
(d) Liens arising in the ordinary course of and incidental to
construction, maintenance or current operations which have not been
filed pursuant to law against US Borrower or any Restricted
Subsidiary or in respect of which no steps or proceedings to enforce
such lien have been initiated or which relate to obligations which
are not due or delinquent or if due or delinquent, which US Borrower
or such Restricted Subsidiary shall be contesting in good faith;
provided US Borrower or such Restricted Subsidiary shall have made
adequate provision therefor in accordance with US GAAP;
(e) Liens incurred or created in the ordinary course of business and in
accordance with sound oil and gas industry practice in respect of
the exploration, development or
22
operation of oil and gas properties or related production or
processing facilities or the transmission of petroleum substances as
security in favor of any other Person conducting the exploration,
development, operation or transmission of the property to which such
Liens relate, for US Borrower's or any of its Restricted
Subsidiaries' portion of the costs and expenses of such exploration,
development, operation or transmission, provided that such costs or
expenses are not due or delinquent or, if due or delinquent, which
US Borrower or such Restricted Subsidiary shall be contesting in
good faith; provided US Borrower or such Restricted Subsidiary shall
have made adequate provision therefor in accordance with US GAAP;
(f) overriding royalty interests, net profit interests, reversionary
interests and carried interests or other similar burdens on
production in respect of US Borrower's or any of its Restricted
Subsidiaries' oil and gas properties that are entered into with or
granted to arm's length third parties in the ordinary course of
business and in accordance with sound oil and gas industry practice
in the area of operation;
(g) Liens for penalties arising under non-participation provisions of
operating agreements in respect of US Borrower's or any of its
Restricted Subsidiaries' oil and gas properties if such Liens do not
materially detract from the value of any material part of the
property of US Borrower and its Subsidiaries taken as a whole;
(h) easements, rights-of-way, servitudes, zoning or other similar rights
or restrictions in respect of land held by US Borrower or any
Restricted Subsidiary (including, without limitation, rights-of-way
and servitudes for railways, sewers, drains, pipe lines, gas and
water mains, electric light and power and telephone or telegraph or
cable television conduits, poles, wires and cables) which, either
alone or in the aggregate, do not materially detract from the value
of such land or materially impair its use in the operation of the
business of US Borrower and its Restricted Subsidiaries taken as a
whole;
(i) security given by US Borrower or any Restricted Subsidiary to a
public utility or any Governmental Authority when required by such
public utility or Governmental Authority in the ordinary course of
the business of US Borrower or any Restricted Subsidiary in
connection with operations of US Borrower or any Restricted
Subsidiary if such security does not, either alone or in the
aggregate, materially detract from the value of any material part of
the property of US Borrower and its Restricted Subsidiaries taken as
a whole;
(j) the right reserved to or vested in any Governmental Authority by the
terms of any lease, license, grant or permit or by any statutory or
regulatory provision to terminate any such lease, license, grant or
permit or to require annual or other periodic payments as a
condition of the continuance thereof;
23
(k) all reservations in the original grant of any lands and premises or
any interests therein and all statutory exceptions, qualifications
and reservations in respect of title;
(l) any Lien from time to time disclosed by US Borrower or any
Restricted Subsidiary to the US Agent or the Canadian Agent and
which is consented to by the Majority Lenders;
(m) any right of first refusal in favor of any Person granted in the
ordinary course of business with respect to all or any of the oil
and gas properties of US Borrower or any Restricted Subsidiary;
(n) Liens on cash or marketable securities of US Borrower or any
Restricted Subsidiary granted in connection with any Hedging
Contract permitted under the US Agreement;
(o) Liens in respect of Indebtedness permitted by Sections 7.1(b),
7.1(f) and 7.1(i) of the US Agreement and Indebtedness permitted to
be secured by Section 7.1(c) of the US Agreement;
(p) Liens in favor of the US Agent or the Canadian Agent for the benefit
of the Lender Parties;
(q) Liens to collateralize moneys held in a cash collateral account by a
lender in respect of the prepayment of bankers' acceptances, letters
of credit or similar obligations accepted or issued by such lender
but only if at the time of such prepayment no default or event of
default has occurred and is continuing under the credit facility
pursuant to which the bankers' acceptances or letters of credit have
been accepted or issued;
(r) purchase money Liens upon or in any tangible personal property and
fixtures (including real property surface rights upon which such
fixtures are located and contractual rights and receivables relating
to such property) acquired by US Borrower or a Restricted Subsidiary
in the ordinary course of business to secure the purchase price of
such property or to secure Indebtedness incurred solely for the
purpose of financing the acquisition of such property, including any
Liens existing on such property at the time of its acquisition
(other than any such Lien created in contemplation of any such
acquisition);
(s) the rights of buyers under production sale contracts related to US
Borrower's or a Restricted Subsidiary's share of petroleum
substances entered into in the ordinary course of business, provided
that the contracts create no rights (including any Lien) in favor of
the buyer or any other Person in, to or over any reserves of
petroleum substances or other assets of US Borrower or a Restricted
Subsidiary, other than a dedication of reserves (not by way of Lien
or absolute assignment) on usual industry terms;
24
(t) Liens arising in respect of operating leases of personal property
under which Canadian Borrowers or any of their Subsidiaries are
lessees;
(u) Liens on property of a Person existing at the time such Person
becomes a Restricted Subsidiary, is merged into or amalgamated or
consolidated with US Borrower or any of its Subsidiaries; provided,
such Liens were in existence prior to the contemplation of such
stock acquisition, merger, amalgamation or consolidation and do not
extend to any assets other than those of the Person so acquired or
merged into or amalgamated or consolidated with US Borrower or any
of its Subsidiaries;
(v) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Lien
referred to in the preceding paragraphs (a) to (u) inclusive of this
definition, so long as any such extension, renewal or replacement of
such Lien is limited to all or any part of the same property that
secured the Lien extended, renewed or replaced (plus improvements on
such property), the indebtedness or obligation secured thereby is
not increased and such Lien is otherwise permitted by the applicable
section above;
(w) Liens on Margin Stock;
(x) in addition to Liens permitted by clauses (a) through (w) above,
Liens on property or assets if the aggregate Indebtedness secured
thereby does not exceed two percent (2%) of Consolidated Assets;
provided that nothing in this definition shall in and of itself constitute or be
deemed to constitute an agreement or acknowledgment by the US Agent or the
Canadian Agent or any Lender that the Indebtedness subject to or secured by any
such Permitted Lien ranks (apart from the effect of any Lien included in or
inherent in any such Permitted Liens) in priority to the Obligations.
"Person" means an individual, corporation, partnership, limited liability
company, association, joint stock company, trust or trustee thereof, estate or
executor thereof, unincorporated organization or joint venture, Tribunal, or any
other legally recognizable entity.
"Rating Agency" means any of S & P or Moody's, or their respective
successors.
"Re-allocations" means, collectively, all Tranche B Re-allocations and all
Canadian Re-allocations.
"Reg U" means Regulation U promulgated by the Board of Governors of the
Federal Reserve System.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect.
25
"Request for an Offer of Extension" means (a) with respect to the Canadian
Agreement, a written request made by Canadian Borrowers to the Lenders to have
Required Lenders issue an offer to Canadian Borrowers extending the Canadian
Revolving Period for a further 364 days, and (b) with respect to the US
Agreement, a written request made by US Borrower to the Lenders to have Required
Lenders issue an offer to US Borrower extending the Tranche B Revolving Period
for a further 364 days.
"Required Lenders" means, collectively, US Required Lenders and Canadian
Required Lenders.
"Reserve Requirement" means, at any time, the maximum rate at which
reserves (including any marginal, special, supplemental, or emergency reserves)
are required to be maintained under regulations issued from time to time by the
Board of Governors of the Federal Reserve System of the United States of America
(or any successor) by member banks of such Federal Reserve System against
"Eurocurrency liabilities" (as such term is used in Regulation D). Without
limiting the effect of the foregoing, the Reserve Requirement shall reflect any
other reserves required to be maintained by such member banks with respect to
(a) any category of liabilities which includes deposits by reference to which
the Adjusted US Dollar Eurodollar Rate
or the Adjusted Canadian Dollar Eurodollar Rate is to be determined, or
(b) any category of extensions of credit or other assets which include US Dollar
Eurodollar Loans or Canadian Dollar Eurodollar Loans.
"Restricted Person" means any of US Borrower and each Restricted
Subsidiary.
"Restricted Subsidiary" means each Canadian Borrower, Devon Oklahoma,
Devon SFS, Devon Financing ULC and any other Subsidiary of US Borrower that is
not an Unrestricted Subsidiary.
"S & P" means Standard & Poor's Ratings Services (a division of McGraw
Hill Companies, Inc.), or its successor.
"Schedule I BA Reference Banks" means the Lenders listed in Schedule I to
the Bank Act (Canada) as are, at such time, designated by Canadian Agent, with
the prior consent of Canadian Borrowers (acting reasonably), as the Schedule I
BA Reference Banks.
"Schedule II BA Reference Banks" means the Lenders listed in Schedule II
to the Bank Act (Canada) and the Lenders listed in Schedule III to the Bank Act
(Canada) that are not subject to the restrictions and requirements referred to
in subsection 524(2) of the Bank Act (Canada) as are, at such time, designated
by Canadian Agent, with the prior consent of the Canadian Borrowers (acting
reasonably), as the Schedule II BA Reference Banks.
"Stamping Fee Rate" means with respect to any Bankers' Acceptance accepted
by any Canadian Resident Lender at any time, the Applicable Margin then in
effect.
"Subordinated US Borrower Debentures" means those certain Convertible
Junior Subordinated Debentures which may be issued by US Borrower to Devon Trust
pursuant to the
26
Registration Statement in an aggregate amount not to exceed $447,261,200, which
will be subordinate to the Obligations.
"Subsidiary" means, with respect to any Person, any corporation,
association, partnership, limited liability company, joint venture, business
trust, or other business or corporate entity, enterprise or organization which
is directly or indirectly (through one or more intermediaries) controlled by or
owned fifty percent or more by such Person, provided that (a) associations,
joint ventures or other relationships (i) which are established pursuant to a
standard form operating agreement or similar agreement or which are partnerships
for purposes of federal income taxation only, (ii) which are not corporations or
partnerships (or subject to the Uniform Partnership Act) under applicable state
Law, and (iii) whose businesses are limited to the exploration, development and
operation of oil, gas or mineral properties, transportation and related
facilities and interests owned directly by the parties in such associations,
joint ventures or relationships, shall not be deemed to be "Subsidiaries" of
such Person and (b) associations, joint ventures or other relationships (i)
which are not corporations or partnerships under applicable provincial Law, and
(ii) whose businesses are limited to the exploration, development and operation
of oil, gas or mineral properties, transportation and related facilities and
interests owned directly by the
parties in such associations, joint ventures or relationships, shall not
be deemed to be "Subsidiaries" of such Person.
"Termination Event" means (a) the occurrence with respect to any ERISA
Plan of (i) a reportable event described in Sections 4043(c)(5) or (6) of ERISA
or (ii) any other reportable event described in Section 4043(c) of ERISA other
than a reportable event not subject to the provision for 30-day notice to the
Pension Benefit Guaranty Corporation pursuant to a waiver by such corporation
under Section 4043(a) of ERISA; or (b) the withdrawal of any ERISA Affiliate
from an ERISA Plan during a plan year in which it was a "substantial employer"
as defined in Section 4001(a)(2) of ERISA; or (c) a complete or partial
withdrawal by any ERISA Affiliate from a Multiemployer Plan or notification that
a Multiemployer Plan is in reorganization; or (d) the filing of a notice of
intent to terminate any ERISA Plan or Multiemployer Plan or the treatment of any
ERISA Plan amendment or Multiemployer Plan amendment as a termination under
Section 4041 or 4041A of ERISA; or (e) the institution of proceedings to
terminate any ERISA Plan or Multiemployer Plan by the Pension Benefit Guaranty
Corporation under Section 4042 of ERISA; or (f) any other event or condition
which might constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any ERISA Plan or
Multiemployer Plan.
"Total Capitalization" means the sum (without duplication) of (i) US
Borrower's Consolidated Total Funded Debt plus (ii) US Borrower's Consolidated
shareholder's equity plus (iii) 60% of the outstanding balance of the Devon
Trust Securities. Total Capitalization shall be calculated excluding non-cash
write-downs and related charges which are required under Rule 4-10 (Financial
Accounting and Reporting for Oil and Gas Producing Activities Pursuant to the
Federal Securities Laws and the Energy Policy and Conservation Act of 1975) of
Regulation S-X promulgated by Securities and Exchange Commission Regulation, or
by US GAAP.
27
"Total Funded Debt" means (i) Liabilities referred to in clauses (a), (b),
(c), (d), and (e) of the definition of "Indebtedness", plus (ii) 40% of the
outstanding balance of the Devon Trust Securities. Total Funded Debt shall not
include the PennzEnergy Exchangeable Debentures.
"Tranche A Commitment Period" means the period from and including the
Closing Date until the Tranche A Maturity Date (or, if earlier, the day on which
the obligations of Lenders to make Tranche A Loans hereunder or the obligations
of US LC Issuer to issue Letters of Credit hereunder have been terminated or the
Tranche A Notes first become due and payable in full).
"Tranche A Facility Fee Rate" means, on any date, the number of Basis
Points per annum set forth below based on the Applicable Rating Level on such
date:
Applicable Applicable Tranche A
Rating Level Facility Fee Rate
------------ --------------------
Level I 11.0
Level II 12.5
Level III 15.0
Level IV 17.5
Level V 25.0
"Tranche A Facility Usage" means, at the time in question, the aggregate
amount of Tranche A Loans and existing US LC Obligations outstanding at such
time under the US Agreement.
"Tranche A Lenders" means Lenders designated as Tranche A Lenders on the
Lenders Schedule.
"Tranche A Loan" has the meaning given it in Section 1.1(a) of the US
Agreement.
"Tranche A Maturity Date" means October 15, 2004.
"Tranche A Maximum Credit Amount" means $200,000,000.
"Tranche A Note" has the meaning given it in Section 1.1(a) of the US
Agreement.
"Tranche A Percentage Share" means with respect to any Tranche A Lender
(i) when used in Article I of the US Agreement or in Article II of the US
Agreement, in any Borrowing Notice thereunder or when no Tranche A Loans are
outstanding, the Tranche A percentage set forth opposite such Tranche A Lender's
name on the Lenders Schedule as modified by assignments of a Tranche A Lender's
rights and obligations under the US Agreement made by or to such Lender in
28
accordance with the terms of the US Agreement, and (ii) when used otherwise, the
percentage obtained by dividing (x) the sum of the unpaid principal balance of
such Lender's Tranche A Loans and such Lender's Percentage Share of the US LC
Obligations, by (y) the sum of the aggregate unpaid principal balance of all
Tranche A Loans at such time plus the aggregate amount of all US LC Obligations
outstanding at such time.
"Tranche A Required Lenders" means Tranche A Lenders whose aggregate
Tranche A Percentage Shares equal or exceed fifty percent (50%).
"Tranche B Conversion Date" means the date which is 364 days after the
Closing Date, 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 Fee Rate" means, on any date, the number of Basis
Points per annum set forth below based on the Applicable Rating Level on such
date:
Applicable Applicable Tranche B
Rating Level Facility Fee Rate
------------ --------------------
Level I 9.0
Level II 10.0
Level III 12.5
Level IV 15.0
Level V 22.5
"Tranche B Facility Usage" means, at the time in question, the aggregate
amount of Tranche B Loans outstanding at such time under the US Agreement.
"Tranche B Lenders" means Lenders designated as Tranche B Lenders on the
Lenders Schedule.
"Tranche B Loan" has the meaning given it in Section 1.1(b) of the US
Agreement.
"Tranche B Maturity Date" means the date which is two years and one day
after the Tranche B Conversion Date.
"Tranche B Maximum Credit Amount" means $525,000,000 on the Closing Date,
as increased or decreased thereafter pursuant to Section 1.9 of the US Credit
Agreement or Section 1.12 of the Canadian Agreement, but in no event greater
than $625,000,000 or less than $425,000,000.
29
"Tranche B Note" has the meaning given it in Section 1.1(b) of the US
Agreement.
"Tranche B Percentage Share" means with respect to any Tranche B Lender
(i) when used in Article I 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 sum of the unpaid principal balance of such Lender's Tranche B Loans, by (y)
the sum of the aggregate unpaid principal balance of all Tranche B Loans.
"Tranche B Re-allocation" has the meaning given it in Section 1.9 of the
US Agreement.
"Tranche B Required Lenders" means Tranche B Lenders whose aggregate
Tranche B Percentage Shares equal or exceed fifty percent (50%).
"Tranche B Revolving Period" means the period from the Closing Date until
the Tranche B Conversion Date.
"Tribunal" means any government, any arbitration panel, any court or any
governmental department, commission, board, bureau, agency or instrumentality of
the United States of America or Canada or any state, province, commonwealth,
nation, territory, possession, county, parish, town, township, village or
municipality, whether now or hereafter constituted or existing.
"Type" means (i) with respect to any US Loans, the characterization of
such US Loans as either US Base Rate Loans or US Dollar Eurodollar Loans and
(ii) with respect to any Canadian Advances, the characterization of such
Canadian Advances as Canadian Base Rate Loans, Canadian Prime Rate Loans, US
Dollar Eurodollar Loans, Canadian Dollar Eurodollar Loans or Bankers'
Acceptances.
"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 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. The Subsidiaries of US Borrower
listed on Attachment 1 to this Annex I shall initially be designated as
Unrestricted Subsidiaries.
"US Account" means an account established by Canadian Agent in New York
into which funds to be advanced to Canadian Borrowers by Lenders in US Dollars
and funds to be paid by Canadian Borrowers to Lenders in US Dollars will be
deposited.
30
"US Agent" means Bank of America, as administrative agent, under the US
Agreement and its successors and assigns in such capacity.
"US Agreement" means the Existing US Credit Agreement, as amended and
restated on the Closing Date pursuant to the Seventh Amendment to US Credit
Agreement and the Amended and Restated Credit Agreement annexed thereto and as
it may be further amended, supplemented, restated or otherwise modified and in
effect from time to time.
"US Base Rate" means, for any day, the rate per annum equal to the higher
of (a) the Federal Funds Rate for such day plus one-half of one percent (0.5%)
and (b) the US Reference Rate for such day. Any change in the US Base Rate due
to a change in the US Reference Rate or the Federal Funds Rate shall be
effective on the effective date of such change in the US
Reference Rate or Federal Funds Rate. No US Base Rate charged by any
Person shall ever exceed the Highest Lawful Rate.
"US Base Rate Loan" means a US Loan made in US Dollars which bears
interest at the US Base Rate.
"US Borrower" means Devon Energy Corporation, a Delaware corporation.
"US Dollar" or "US $" means the lawful currency of the United States of
America.
"US Dollar Equivalent" means, with respect to an amount denominated in
Canadian Dollars, the amount of US Dollars required to purchase the relevant
stated amount of Canadian Dollars based on the Noon Rate.
"US Dollar Eurodollar Loan" means a US Loan or a Canadian Loan, in each
case, which bears interest at the Adjusted US Dollar Eurodollar Rate.
"US Dollar Eurodollar Rate" means, for any US Dollar Eurodollar Loan
within a Borrowing and with respect to the related Interest Period therefor, (a)
the interest rate per annum (carried out to the fifth decimal place) equal to
the rate determined by the US Agent to be the offered rate that appears on the
page of the Telerate Screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate (such page currently being
page number 3750) for deposits in U.S. dollars (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period, determined
as of approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period, or (b) in the event the rate referenced in
the preceding subsection (a) does not appear on such page or service or such
page or service shall cease to be available, the rate per annum (carried out to
the fifth decimal place) equal to the rate determined by the US Agent to be the
offered rate on such other page or other service that displays an average
British Bankers Association Interest Settlement Rate for deposits in U.S.
dollars (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period,
or (c) in the event the rates referenced in the preceding subsections (a) and
(b) are not available, the rate per annum determined by the US Agent as the rate
of interest at which deposits in U.S. dollars (for delivery on the first day of
31
such Interest Period) in same day funds in the approximate amount of the
applicable US Dollar Eurodollar Loan and with a term equivalent to such Interest
Period would be offered by its London branch to major banks in the London
interbank eurodollar market at their request at approximately 4:00 p.m. (London
time) two Business Days prior to the first day of such Interest Period.
"US Facility Usage" means, at the time in question, the aggregate amount
of US Loans and existing US LC Obligations outstanding at such time under the US
Agreement.
"US GAAP" means those generally accepted accounting principles and
practices which are recognized as such from time to time by the Financial
Accounting Standards Board (or any
generally recognized successor) and which, in the case of US Borrower and
its Consolidated Subsidiaries, are applied for all periods after the Closing
Date in a manner consistent with the manner in which such principles and
practices were applied to the Initial Financial Statements.
"US Guarantor" means Devon Financing ULC.
"US LC Issuer" means Bank of America in its capacity as the issuer of
Letters of Credit under the US Agreement, and its successors in such capacity.
"US LC Obligations" means, at the time in question, with respect to the US
Agreement, the sum of all Matured US LC Obligations plus the maximum amounts
which US LC Issuer might then or thereafter be called upon to advance under all
Letters of Credit issued under the US Agreement then outstanding.
"US LC Sublimit" means US $125,000,000.
"US Lenders" means each signatory to the US Agreement (other than US
Borrower), including Bank of America in its capacity as a US Lender and US Swing
Lender hereunder, rather than as US Agent and US LC Issuer, and the successors
of each such party as holder of a US Note.
"US Loans" means the Tranche A Loans, the Tranche B Loans, Competitive Bid
Loans made under the US Agreement, and the US Swing Loans.
"US Loan Documents" means the US Agreement, the US Notes issued under the
US Agreement, the Guaranty executed by US Guarantor, the Letters of Credit
issued under the US Agreement, the LC Applications related thereto, and all
other agreements, certificates, documents, instruments and writings at any time
delivered in connection herewith or therewith (exclusive of term sheets and
commitment letters).
"US Majority Lenders" means US Lenders whose aggregate Percentage Shares
under the US Agreement exceed sixty-six and two thirds percent (66 2/3%).
"US Maximum Credit Amount" means the amount of US $725,000,000 on the
Closing Date, as increased or decreased thereafter by the amount of each
increase or decrease in the Tranche B Maximum Credit Amount pursuant to Section
1.9 of the US Credit Agreement or
32
Section 1.12 of the Canadian Agreement, but in no event greater than
$825,000,000 or less than $625,000,000.
"US Notes" means the Tranche A Notes, the Tranche B Notes, the Competitive
Bid Notes issued under the US Agreement, and the US Swing Note.
"US Obligations" means all Liabilities from time to time owing by any
Restricted Person to any Lender Party under or pursuant to any of the US Loan
Documents, including all US LC Obligations owing thereunder. "US Obligation"
means any part of the US Obligations.
"US Reference Rate" means, for any day, the rate of interest in effect for
such day as publicly announced from time to time by Bank of America as its
"prime rate." Such rate is a rate set by Bank of America based upon various
factors including Bank of America's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate. Any change
in such rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change.
"US Required Lenders" means US Lenders whose aggregate Percentage Shares
under the US Agreement equal or exceed fifty percent (50%).
"US Swing Lender" means Bank of America, in its individual capacity.
"US Swing Loans" has the meaning given it in Section 1.1(f) of the US
Agreement.
"US Swing Note" has the meaning given it in Section 1.1(f) of the US
Agreement.
"US Swing Rate" means on any day a fluctuating rate of interest per annum
established from time to time by Bank of America, as its money market rate,
which rate may not be the lowest rate of interest charged by Bank of America, to
its customers, plus the Applicable Margin. The US Swing Rate shall never exceed
the Highest Lawful Rate.
"US Swing Sublimit" means US $50,000,000.
"Withholding Tax" has the meaning given it in Section 3.2(d) of the
Canadian Agreement.
33
ATTACHMENT 1
TO
ANNEX I
UNRESTRICTED SUBSIDIARIES
STATE OR
JURISDICTION
UNRESTRICTED SUBSIDIARY OF EXISTENCE
10 167496 Canada Ltd. Alberta
20 2861259 Canada Inc. Canada
30 308819 Alberta Ltd. Alberta
4. 382817 Alberta Ltd. Alberta
5. 413486 Alberta Ltd. Alberta
6. 418263 Alberta Ltd. Alberta
7. 418264 Alberta Ltd. Alberta
8. 622089 B.C. Ltd. British Columbia
9. 622090 B.C. Ltd. British Columbia
10. 622092 B.C. Ltd. British Columbia
11. 622093 B.C. Ltd. British Columbia
12. 622094 B.C. Ltd. British Columbia
13. 622095 B.C. Ltd. British Columbia
14. 622096 B.C. Ltd. British Columbia
15. 746481 Alberta Ltd. Alberta
16. 892306 Alberta Ltd. Alberta
17. 918879 Alberta Ltd. Alberta
18. 918884 Alberta Ltd. Alberta
19. 918888 Alberta Ltd. Alberta
20. Acacia Natural Gas Corporation Delaware
21. Adobe Offshore Pipeline Company Delaware
22. Amax Petroleum of Canada, Inc. Texas
23. Anderson Exploration Inc. (US) Colorado
24. Azerbaijan International Operating Company Cayman Islands
25. Blackwood & Nichols Co., A Ltd. Partnership New Mexico
26. Bonito Pipe Line Company Delaware
27. Braemar Shipping Company Limited Bermuda
28. Bridger Petroleum Corporation Ltd. Alberta
29. Cachuma Gas Processing Company Delaware
30. Canoa Ranch Corporation Delaware
31. Capitan Oil Pipeline Company Delaware
32. Catclaw Pipeline, Inc. Oklahoma
33. Compagnie Atlantique SARL France
34. DBC, Inc. Oklahoma
35. DEC (Holdings), Ltd. Bahamas
36. DEC (International), Ltd. Bahamas
37. DEC Capital S.a.r.l. Luxembourg
38. DEC Gas Systems, Inc. Delaware
39. DEC International Holdings, Inc. Delaware
40. DEC Louisiana Leasing, Inc. Delaware
41. DEC Operating, Inc. Delaware
42. DEC SOCO International, Inc. Delaware
43. DEC Technologies, Inc. Delaware
44. DEC, Inc. Delaware
45. Devon Algeria Exploration, Ltd. Bahamas
46. Devon AOG Corporation (fka Anderson Oil & Gas Inc.) Alberta
47. Devon ARL Corporation (fka Anderson Resources Ltd.) Alberta
48. Devon AXL (fka Anderson Exploration partnership) Alberta
49. Devon Canada (fka Northstar Energy partnership) Alberta
50. Devon Energy (Delaware) Limited Delaware
51. Devon Energy (Thailand) Ltd. Thailand
52. Devon Energy Agali, Ltd. Bahamas
53. Devon Energy Angola, Ltd. British Virgin Islands
54. Devon Energy Asiatic, Inc. Delaware
55. Devon Energy Beni Suef, Inc. British Virgin Islands
56. Devon Energy Brazil Holdings, Ltd. Bahamas
57. Devon Energy Canada Ltd. Alberta
58. Devon Energy Caspian Corporation British Virgin Islands
59. Devon Energy Caspian Development Corporation British Virgin Islands
60. Devon Energy Charitable Foundation Oklahoma
61. Devon Energy China, Ltd. Bahamas
62. Devon Energy Congo, Ltd. Bahamas
63. Devon Energy Corporation (Oklahoma) Oklahoma
64. Devon Energy Corporation of Argentina Delaware
65. Devon Energy do Brasil Ltda. Brazil
66. Devon Energy Egypt, Inc. Delaware
67. Devon Energy Eurasia, Ltd. Cayman Islands
68. Devon Energy Exploration Brazil, Inc. British Virgin Islands
69. Devon Energy Gabon, Ltd. Bahamas
70. Devon Energy Gas Marketing Company Delaware
71. Devon Energy Ghana, Ltd. Bahamas
72. Devon Energy Global Resources, Ltd. Bahamas
73. Devon Energy Insurance Company Limited Bermuda
74. Devon Energy International Company Delaware
75. Devon Energy Intrastate Pipeline Company Delaware
76. Devon Energy Malaysia, Ltd. Bahamas
77. Devon Energy Management Company, L. L. C. Oklahoma
78. Devon Energy Mondah Bay, Ltd. Bahamas
79. Devon Energy Morocco, Ltd. Bahamas
80. Devon Energy Offshore Pipeline Company Delaware
81. Devon Energy Operating Company, L.P. Delaware
82. Devon Energy Pagatan, Ltd. Bahamas
83. Devon Energy Partners A Limited Partnership Oklahoma
84. Devon Energy Petroleum Pipeline Company Delaware
85. Devon Energy Petroleum's, Ltd. Delaware
86. Devon Energy Port Bouet, Ltd. Bahamas
87. Devon Energy Qatar, Inc. Delaware
88. Devon Energy Red Sea, Inc. British Virgin Islands
89. Devon Energy Sinai, Inc. British Virgin Islands
90. Devon Energy South America, Ltd. Bahamas
91. Devon Energy South East Asia Limited Bermuda
92. Devon Energy Suez, Inc. British Virgin Islands
93. Devon Energy Thai Holding, Ltd. Bahamas
94. Devon Energy Venezuela Corporation, S.A. British Virgin Islands
95. Devon Energy West Africa, Ltd. British Virgin Islands
96. Devon Exploration & Production, Inc. Delaware
97. Devon Exploration do Brazil, Ltda. Brazil
98. Devon Financing Trust Delaware
99. Devon Financing Trust II Delaware
100. Devon Gas Corporation Delaware
101. Devon Gas Marketing, Inc. Delaware
102. Devon Gas Operating, Inc. Delaware
103. Devon Gas Services, L.P. Delaware
104. Devon Holding Corporation Delaware
105. Devon Louisiana Gas Services, Inc. Delaware
106. Devon Malta One, Inc. Delaware
107. Devon Malta Two, Inc. Delaware
108. Devon MND Energy Corporation Delaware
109. Devon MND Operating, Inc. Delaware
110. Devon MND Service, Inc. Delaware
111. Devon Operating Company Ltd. Alberta
112. Devon Pacific Fuels Company Delaware
113. Devon Production Corporation Nevada
114. Devon-Blanco Company Oklahoma
115. Fanar Petroleum Company Egypt
116. Foothills Partnership Alberta
117. Gulf Coast American Corp. Pennsylvania
118. Home Exploration Limited Alberta
119. Home Hydrocarbons Inc. Canada
120. Home Oil Company Limited Canada
121. Home Oil Resources Ltd. (US) Delaware
122. Independent Pipe Line Company Canada
123. Le Bord de la Mer Limited Malta
124. Mexican Flats Service Company, Inc. Delaware
3
125. Mitchell Resorts, Inc. Delaware
126. MND Exploration & Production, Inc. Delaware
127. MND Gas Services L.L.C. Delaware
128. Morrison Gas Gathering, Inc. Delaware
129. Morrison Nuclear Inc. Delaware
130. Morrison Operating Company Ltd. Alberta
131. Mountain Energy Inc. Alberta
132. Northstar Energy Inc. Delaware
133. Nueces Intrastate Pipe Line Company Nevada
134. Numac Energy (Cenako) Inc. Alberta
135. Numac Energy (US) Inc. Delaware
136. Numac Energy Inc. Alberta
137. Pepco Partners, L. P. Delaware
138. Petrolera Devon (Columbia), Ltd. Bermuda
139. Petrolera Santa Fe, S.A. Argentina
140. Petrolera Santa Fe Southern Cone, Inc. British Virgin Islands
141. Plains Petroleum Limited Alberta
142. PSF Services, L.L.C. Delaware
143. Richland Development Corporation Nevada
144. Richland Properties Company, L.L.C. Oklahoma
145. Richland Transition Company Delaware
146. Sage Creek Processors, L.L.C. Wyoming
147. Santa Fe Energy Resources (Cote d'Ivoire) Ltd. Bahamas
148. Santa Fe Energy Resources of Canada, Inc. Alberta
149. Santa Fe Energy Resources of Myanmar, Ltd. Bahamas
150. Santa Fe Energy Resources of Peru, Ltd. Bahamas
151. Santa Fe Energy Trust Texas
152. Scurry-Rainbow Oil (Sask) Ltd. (voluntarily liquidating) Saskatchewan
153. Security Purchasing, Inc. Delaware
154. SFER (Barbados) Ltd. Barbados
155. Sisquoc Gas Pipeline Company Delaware
156. Smart On Resources Inc. Alberta
157. Southwestern Gas Pipeline, Inc. Delaware
158. Strategic Trust Company Cayman Islands
159. Tall Grass Gas Services, L.L.C. Oklahoma
160. The Winnipeg Western Land Corporation Limited Canada
161. The Woodlands Venture Capital Company Delaware
162. Thunder Creek Gas Services, L.L.C. Wyoming
163. Torquay Trading Company Limited Malta
164. Trend Argentina, S.A. Argentina
165. Trend Exploration (PNG) Party Ltd. Papua New Guinea
166. Vermejo Minerals Corporation Delaware
167. Vermejo Park Corporation Delaware
168. Wyoming Gathering and Production Company, Inc. Delaware
4
Annex II - Lenders Schedule
BANK OF AMERICA
US AGREEMENT
Name of Affiliate that is Lender under US Agreement Bank of America, N.A.
Applicable Lending Office for US Loans: 901 Main Street, 64th Floor
Dallas, Texas 75202
Address for Notices: Three Allen Center
333 Clay Street, Suite 4550
Houston, Texas 77022-4103
Attention: Richard Stein
US TRANCHE A
Tranche A Note Amount (5 year): US$ 19,333,333.34
Tranche A Percentage Share: 9.66667%
US TRANCHE B
Tranche B Note Amount (364 day): US$ 42,578,125.00
Tranche B Percentage Share: 6.81250%
CANADIAN AGREEMENT
Name of Affiliate that is Lender under Canadian Agreement: Bank of America, N.A.
(CANADIAN RESIDENT LENDER)
Applicable Lending Office for Canadian Advances: 200 Front Street West,
Suite 2700
Toronto, Ontario M5V 3L2
Address for Notices: 200 Front Street West,
Suite 2700
Toronto, Ontario M5V 3L2
Attention: Medina Sales de Andrade
CANADIAN FACILITY
Canadian Note Amount: US$ 25,546,875.00
Canadian Percentage Share: 6.81250%
AGGREGATE COMMITMENT UNDER US AGREEMENT US$ 73,833,333
AND CANADIAN AGREEMENT
Annex II - Lenders Schedule
ABN AMRO BANK
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: ABN AMRO Bank, N.V.
Applicable Lending Office for US Loans: 208 South LaSalle, Suite 1500
Chicago, Illinois 60604-1003
Attention: Loan Administration
Address for Notices: 208 South LaSalle, Suite 1500
Chicago, Illinois 60604-1003
Attention: Loan Administration
cc: 4400 Post Oak Parkway, Suite 1500
Houston, Texas 77027
Attention: Frank R. Russo, Jr.
US TRANCHE A
Not a Tranche A Lender
US TRANCHE B
Tranche B Note Amount (364 day): US$ 39,062,500.00
Tranche B Percentage Share: 6.25000%
CANADIAN AGREEMENT
Name of Affiliate that is Lender under Canadian Agreement: ABN AMRO Bank, N.V., Canada Branch
(CANADIAN RESIDENT LENDER)
Applicable Lending Office for Canadian Advances: 79 Wellington St. West, 15th Floor
Toronto, Ontario M5K 1G8
Address for Notices: 79 Wellington St. West, 15th Floor
Toronto, Ontario M5K 1G8
Attention: Yasmin Mohideen
cc: 4400 Post Oak Parkway, Suite 1500
Houston, Texas 77027
Attention: Frank R. Russo, Jr.
CANADIAN FACILITY
Canadian Note Amount: US$ 23,437,500.00
Canadian Percentage Share: 6.25000%
AGGREGATE COMMITMENT UNDER US AGREEMENT US$ 50,000,000
AND CANADIAN AGREEMENT
Annex II - Lenders Schedule
BANK OF MONTREAL
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: Bank of Montreal
Applicable Lending Office for US Loans: 115 South La Salle
11th Floor
Chicago, Illinois 60603
Attention: Loan Administration
Address for Notices: 700 Louisiana, Suite 4400
Houston, Texas 77002
Attention: James Whitmore
US TRANCHE A
Tranche A Note Amount (5 year): US$ 16,000,000.00
Tranche A Percentage Share: 8.00000%
US TRANCHE B
Tranche B Note Amount (364 day): US$ 39,062,500.00
Tranche B Percentage Share: 6.25000%
CANADIAN AGREEMENT
Name of Affiliate that is Lender under Canadian Agreement: Bank of Montreal
(NON-RESIDENT LENDER)
Applicable Lending Office for Canadian Advances: 115 South La Salle
11th Floor
Chicago, Illinois 60603
Attention: Loan Administration
Address for Notices: 700 Louisiana, Suite 4400
Houston, Texas 77002
Attention: James Whitmore
CANADIAN FACILITY
Canadian Note Amount: US$ 23,437,500.00
Canadian Percentage Share: 6.25000%
AGGREGATE COMMITMENT UNDER US AGREEMENT US$ 66,000,000
AND CANADIAN AGREEMENT
Annex II - Lenders Schedule
BANK OF OKLAHOMA
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: Bank of Oklahoma, N.A.
Applicable Lending Office for US Loans: 201 Robert S. Kerr
Oklahoma City, Oklahoma 73124
Address for Notices: 201 Robert S. Kerr
Oklahoma City, Oklahoma 73124
Attention: John N. Huff
US TRANCHE A
Not a Tranche A Lender
US TRANCHE B
Tranche B Note Amount (364 day): US$ 19,531,250.00
Tranche B Percentage Share: 3.12500%
CANADIAN AGREEMENT
Name of Affiliate that is Lender under Canadian Agreement: Bank of Oklahoma, N.A.
(NON-RESIDENT LENDER)
Applicable Lending Office for Canadian Advances: 201 Robert S. Kerr
Oklahoma City, Oklahoma 73124
Address for Notices: 201 Robert S. Kerr
Oklahoma City, Oklahoma 73124
Attention: John N. Huff
CANADIAN FACILITY
Canadian Note Amount: US$ 11,718,750.00
Canadian Percentage Share: 3.12500%
AGGREGATE COMMITMENT UNDER US AGREEMENT US$ 25,000,000
AND CANADIAN AGREEMENT
Annex II - Lenders Schedule
BANK ONE
[TRANCHE A ONLY]
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: Bank One, NA
Applicable Lending Office for US Loans: 1 Bank One Plaza
Mail Code: IL1-0634
Chicago, Illinois 60670
Address for Notices: 910 Travis Street, 6th Floor
Houston, Texas 77002
Attention: Ronald L. Dierker
US TRANCHE A
Tranche A Note Amount (5 year): US$ 19,333,333.33
Tranche A Percentage Share: 9.66667%
US TRANCHE B
Not a Tranche B Lender
CANADIAN AGREEMENT
Not a Canadian Lender
Annex II - Lenders Schedule
BAYERISCHE
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: Bayerische Landesbank Girozentrale,
Cayman Islands Branch
Applicable Lending Office for US Loans: 560 Lexington Avenue
New York, New York 10022
Address for Notices: 560 Lexington Avenue
New York, New York 10022
Attention: Stephen Christenson
US TRANCHE A
Not a Tranche A Lender
US TRANCHE B
Tranche B Note Amount (364 day): US$ 39,062,500.00
Tranche B Percentage Share: 6.25000%
CANADIAN AGREEMENT
Name of Affiliate that is Lender under Canadian Agreement: Bayerische Landesbank Girozentrale,
Toronto Branch
(CANADIAN RESIDENT LENDER)
Applicable Lending Office for Canadian Advances: BCE Place - Suite 3210
181 Bay Street
Toronto, Ontario M5J 2T3
Address for Notices: BCE Place - Suite 3210
181 Bay Street
Toronto, Ontario M5J 2T3
Attention: Bernd Erpenbeck
CANADIAN FACILITY
Canadian Note Amount: US$ 23,437,500.00
Canadian Percentage Share: 6.25000%
AGGREGATE COMMITMENT UNDER US AGREEMENT US$ 50,000,000
AND CANADIAN AGREEMENT
Annex II - Lenders Schedule
CIBC
[TRANCHE A ONLY]
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: CIBC Inc.
Applicable Lending Office for US Loans: 2 Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, Georgia 30339
Attention: Anita Rounds
Address for Notices: 1600 Smith Street, Suite 3100
Houston, Texas 77002
Attention: Mark H. Wolf
US TRANCHE A
Tranche A Note Amount (5 year): US$ 12,000,000.00
Tranche A Percentage Share: 6.00000%
US TRANCHE B
Not a Tranche B Lender
CANADIAN AGREEMENT
Not a Canadian Lender
Annex II - Lenders Schedule
CITIBANK
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: Citibank, N.A.
Applicable Lending Office for US Loans: 399 Park Avenue
New York, New York 10043
Borrowing Notices: Two Penn's Way, 2nd Floor
New Castle Delaware 19720
Attention: Sean L. Portrait
Address for Notices: 1200 Smith Street, Suite 2000
Houston, Texas 77002
Attention: Todd J. Mogil
US TRANCHE A
Tranche A Note Amount (5 year): US$ 16,000,000.00
Tranche A Percentage Share: 8.00000%
US TRANCHE B
Tranche B Note Amount (364 day): US$ 39,062,500.00
Tranche B Percentage Share: 6.25000%
CANADIAN AGREEMENT
Name of Affiliate that is Lender under Canadian Agreement: Citibank, N.A., Canadian branch
(CANADIAN RESIDENT LENDER)
Applicable Lending Office for Canadian Advances: c/o 400 Third Avenue SW, Suite 4301
Calgary, Alberta T2P 4H2
Address for Notices: c/o 400 Third Avenue SW, Suite 4301
Calgary, Alberta T2P 4H2
Attention: Diane Gould
cc: 1200 Smith Street, Suite 2000
Houston, Texas 77002
Attention: Todd J. Mogil
CANADIAN FACILITY
Canadian Note Amount: US$ 23,437,500.00
Canadian Percentage Share: 6.25000%
AGGREGATE COMMITMENT UNDER US AGREEMENT US$ 66,000,000
AND CANADIAN AGREEMENT
Annex II - Lenders Schedule
CREDIT LYONNAIS
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: Credit Lyonnais
Applicable Lending Office for US Loans: 1301 Travis Street
Suite 2100
Houston, Texas 77002
Address for Notices: 1301 Travis Street
Suite 2100
Houston, Texas 77002
Attention: John Grandstaff
US TRANCHE A
Not a Tranche A Lender
US TRANCHE B
Tranche B Note Amount (364 day): US$ 32,812,500.00
Tranche B Percentage Share: 5.25000%
CANADIAN AGREEMENT
Name of Affiliate that is Lender under Canadian Agreement: Credit Lyonnais
(NON-RESIDENT LENDER)
Applicable Lending Office for Canadian Advances: 1301 Travis Street
Suite 2100
Houston, Texas 77002
Address for Notices: 1301 Travis Street
Suite 2100
Houston, Texas 77002
Attention: John Grandstaff
CANADIAN FACILITY
Canadian Note Amount: US$ 19,687,500.00
Canadian Percentage Share: 5.25000%
AGGREGATE COMMITMENT UNDER US AGREEMENT US$ 42,000,000
and Canadian Agreement
Annex II - Lenders Schedule
CREDIT SUISSE
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: Credit Suisse First Boston
Applicable Lending Office for US Loans: Eleven Madison Avenue, 10th Floor
New York, New York 10010-3629
Address for Notices: Eleven Madison Avenue, 10th Floor
New York, New York 10010-3629
Attention: James Moran
US TRANCHE A
Not a Tranche A Lender
US TRANCHE B
Tranche B Note Amount (364 day): US$ 39,062,500.00
Tranche B Percentage Share: 6.25000%
CANADIAN AGREEMENT
Name of Affiliate that is Lender under Canadian Agreement: Credit Suisse First Boston
(CANADIAN RESIDENT LENDER)
Applicable Lending Office for Canadian Advances: 1 First Canadian Place, Suite 3000
P.O. Box 301
Toronto, Ontario M5X 1C9
Address for Notices: 1 First Canadian Place, Suite 3000
P.O. Box 301
Toronto, Ontario M5X 1C9
Attention: Alain Daoust
CANADIAN FACILITY
Canadian Note Amount: US$ 23,437,500.00
Canadian Percentage Share: 6.25000%
AGGREGATE COMMITMENT UNDER US AGREEMENT US$ 50,000,000
and Canadian Agreement
Annex II - Lenders Schedule
DEN NORSKE BANK
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: Den norske Bank ASA
Applicable Lending Office for US Loans: 200 Park Avenue, 31st Floor
New York, New York 10166
Address for Notices: 200 Park Avenue, 31st Floor
New York, New York 10166
Attention: Hans J. Ormar
US TRANCHE A
Not a Tranche A Lender
US TRANCHE B
Tranche B Note Amount (364 day): US$ 19,531,250.00
Tranche B Percentage Share: 3.12500%
CANADIAN AGREEMENT
Name of Affiliate that is Lender under Canadian Agreement: Den norske Bank ASA
(NON-RESIDENT LENDER)
Applicable Lending Office for Canadian Advances: 200 Park Avenue, 31st Floor
New York, New York 10166
Address for Notices: 200 Park Avenue, 31st Floor
New York, New York 10166
Attention: Hans J. Ormar
CANADIAN FACILITY
Canadian Note Amount: US$ 11,718,750.00
Canadian Percentage Share: 3.12500%
AGGREGATE COMMITMENT UNDER US AGREEMENT US$ 25,000,000
AND CANADIAN AGREEMENT
Annex II - Lenders Schedule
DEUTSCHE BANK
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: Deutsche Bank AG New York Branch
Applicable Lending Office for US Loans: 31 West 52nd Street
New York, New York 10019
Address for Notices: 31 West 52nd Street
New York, New York 10019
Attention: Joel Makowsky
US TRANCHE A
Tranche A Note Amount (5 year): US$ 9,333,333.33
Tranche A Percentage Share: 4.66667%
US TRANCHE B
Tranche B Note Amount (364 day): US$ 39,062,500.00
Tranche B Percentage Share: 6.25000%
CANADIAN AGREEMENT
Name of Affiliate that is Lender under Canadian Agreement: Deutsche Bank AG, Canada Branch
(CANADIAN RESIDENT LENDER)
Applicable Lending Office for Canadian Advances: 222 Bay Street, Suite 1100
P.O. Box 196
Toronto, Ontario M5K 1H6
Address for Notices: 222 Bay Street, Suite 1100
P.O. Box 196
Toronto, Ontario M5K 1H6
Attention: Robert Johnston
CANADIAN FACILITY
Canadian Note Amount: US$ 23,437,500.00
Canadian Percentage Share: 6.25000%
AGGREGATE COMMITMENT UNDER US AGREEMENT US$ 59,333,333
AND CANADIAN AGREEMENT
Annex II - Lenders Schedule
JPMORGAN CHASE
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: JPMorgan Chase Bank
Applicable Lending Office for US Loans: 1 Chase Manhattan Plaza - 8th
New York, New York 10081
Address for Notices: 600 Travis Street, 20th Floor
Houston, Texas 77002-8086
Attention: Russell Johnson
US TRANCHE A
Tranche A Note Amount (5 year): US$ 31,333,333.33
Tranche A Percentage Share: 15.66667%
US TRANCHE B
Tranche B Note Amount (364 day): US$ 39,062,500.00
Tranche B Percentage Share: 6.25000%
CANADIAN AGREEMENT
Name of Affiliate that is Lender under Canadian Agreement: JPMorgan Chase Bank,
Toronto Branch
(CANADIAN RESIDENT LENDER)
Applicable Lending Office for Canadian Advances: South Tower, Suite 1800
200 Bay Street, Royal Bank Plaza
Toronto, Ontario M5J 2J2
Address for Notices: South Tower, Suite 1800
200 Bay Street, Royal Bank Plaza
Toronto, Ontario M5J 2J2
Attention: Drew McDonald
CANADIAN FACILITY
Canadian Note Amount: US$ 23,437,500.00
Canadian Percentage Share: 6.25000%
AGGREGATE COMMITMENT UNDER US AGREEMENT US$ 81,333,333
AND CANADIAN AGREEMENT
Annex II - Lenders Schedule
LOCAL OKLAHOMA BANK
US AGREEMENT
Name of Affiliate that is Lender under US Agreement Local Oklahoma Bank, N.A.
Applicable Lending Office for US Loans: 3601 N.W. 63rd Street
Oklahoma City, Oklahoma 73116
Address for Notices: 3601 N.W. 63rd Street
Oklahoma City, Oklahoma 73116
Attention: John K. Slay, Jr.
US TRANCHE A
Not a Tranche A Lender
US TRANCHE B
Tranche B Note Amount (364 day): US$ 11,718,750.00
Tranche B Percentage Share: 1.87500%
CANADIAN AGREEMENT
Name of Affiliate that is Lender under Canadian Agreement: Local Oklahoma Bank, N.A.
(NON-RESIDENT LENDER)
Applicable Lending Office for Canadian Advances: 3601 N.W. 63rd Street
Oklahoma City, Oklahoma 73116
Address for Notices: 3601 N.W. 63rd Street
Oklahoma City, Oklahoma 73116
Attention: John K. Slay, Jr.
CANADIAN FACILITY
Canadian Note Amount: US$ 7,031,250.00
Canadian Percentage Share: 1.87500%
AGGREGATE COMMITMENT UNDER US AGREEMENT US$ 15,000,000
AND CANADIAN AGREEMENT
Annex II - Lenders Schedule
ROYAL BANK OF CANADA
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: Royal Bank of Canada
Applicable Lending Office for US Loans: One Liberty Plaza, 3rd Floor
New York, New York 10006-1404
Claro Albay, Liability Officer
Address for Notices: One Liberty Plaza, 3rd Floor
New York, New York 10006
Attention: Claro Albay, Liability Officer
cc: 2800 Post Oak Blvd., Suite 5700
Houston, Texas 77056
Attention: Lorne Gartner
US TRANCHE A
Tranche A Note Amount (5 year): US$ 16,000,000.00
Tranche A Percentage Share: 8.00000%
US TRANCHE B
Tranche B Note Amount (364 day): US$ 39,062,500.00
Tranche B Percentage Share: 6.25000%
CANADIAN AGREEMENT
Name of Affiliate that is Lender under Canadian Agreement: Royal Bank of Canada
(CANADIAN RESIDENT LENDER)
Applicable Lending Office for Canadian Advances: One Liberty Plaza, 3rd Floor
New York, New York 10006-1404
Attention: Claro Albay, Liability Officer
Address for Notices: One Liberty Plaza, 3rd Floor
New York, New York 10006-1404
Attention: Claro Albay, Liability Officer
cc: 2800 Post Oak Blvd., Suite 5700
Houston, Texas 77056
Attention: Lorne Gartner
CANADIAN FACILITY
Canadian Note Amount: US$ 23,437,500.00
Canadian Percentage Share: 6.25000%
AGGREGATE COMMITMENT UNDER US AGREEMENT US$ 66,000,000
AND CANADIAN AGREEMENT
Annex II - Lenders Schedule
SOUTHWEST BANK OF TEXAS
US AGREEMENT
Name of Affiliate that is Lender under US Agreement Southwest Bank of Texas, N.A.
Applicable Lending Office for US Loans: 4400 Post Oak Parkway
Houston, Texas 77027
Address for Notices: 4400 Post Oak Parkway
Houston, Texas 77027
Attention: W. Bryan Chapman
US TRANCHE A
Not a Tranche A Lender
US TRANCHE B
Tranche B Note Amount (364 day): US$ 11,718,750.00
Tranche B Percentage Share: 1.87500%
CANADIAN AGREEMENT
Name of Affiliate that is Lender under Canadian Agreement: Southwest Bank of Texas, N.A.
(NON-RESIDENT LENDER)
Applicable Lending Office for Canadian Advances: 4400 Post Oak Parkway
Houston, Texas 77027
Address for Notices: 4400 Post Oak Parkway
Houston, Texas 77027
Attention: W. Bryan Chapman
CANADIAN FACILITY
Canadian Note Amount: US$ 7,031,250.00
Canadian Percentage Share: 1.87500%
AGGREGATE COMMITMENT UNDER US AGREEMENT US$ 15,000,000
AND CANADIAN AGREEMENT
Annex II - Lenders Schedule
SUNTRUST BANK
[TRANCHE A ONLY]
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: SunTrust Bank, Atlanta
Applicable Lending Office for US Loans: 303 Peachtree Street, N.E.
Third Floor, M/C 1929
Atlanta, Georgia 30308
Address for Notices: 303 Peachtree Street, N.E.
Third Floor, M/C 1929
Atlanta, Georgia 30308
Attention: David Edge
US TRANCHE A
Tranche A Note Amount (5 year): US$6,666,666.67
Tranche A Percentage Share: 3.33333%
US TRANCHE B
Not a Tranche B Lender
CANADIAN AGREEMENT
Not a Canadian Lender
Annex II - Lenders Schedule
THE BANK OF NEW YORK
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: The Bank of New York
Applicable Lending Office for US Loans: One Wall Street, 19th Floor
New York, New York 10286
Address for Notices: One Wall Street, 19th Floor
New York, New York 10286
Attention: Raymond Palmer
US TRANCHE A
Tranche A Note Amount (5 year): US$ 12,000,000.00
Tranche A Percentage Share: 6.00000%
US TRANCHE B
Tranche B Note Amount (364 day): US$ 32,812,500.00
Tranche B Percentage Share: 5.25000%
CANADIAN AGREEMENT
Name of Affiliate that is Lender under Canadian Agreement: The Bank of New York
(NON-RESIDENT LENDER)
Applicable Lending Office for Canadian Advances: One Wall Street, 19th Floor
New York, New York 10286
Address for Notices: One Wall Street, 19th Floor
New York, New York 10286
Attention: Raymond Palmer
CANADIAN FACILITY
Canadian Note Amount: US$ 19,687,500.00
Canadian Percentage Share: 5.25000%
AGGREGATE COMMITMENT UNDER US AGREEMENT US$ 54,000,000
AND CANADIAN AGREEMENT
Annex II - Lenders Schedule
THE BANK OF NOVA SCOTIA
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: The Bank of Nova Scotia
Applicable Lending Office for US Loans: Suite 2700, 600 Peachtree Street, N.E.
Atlanta, Georgia 30308
Address for Notices: Suite 2700, 600 Peachtree Street, N.E.
Atlanta, Georgia 30308
Attention: Donna Gardner
cc: 1100 Louisiana, Suite 3000
Houston, Texas 77002
Attention: Janice Ver Hoeve
US TRANCHE A
Not a Tranche A Lender
US TRANCHE B
Tranche B Note Amount (364 day): US$19,531,250.00
Tranche B Percentage Share: 3.12500%
CANADIAN AGREEMENT
Name of Affiliate that is Lender under Canadian Agreement: The Bank of Nova Scotia
(NON-RESIDENT LENDER)
Applicable Lending Office for Canadian Advances: Suite 2700, 600 Peachtree Street, N.E.
Atlanta, Georgia 30308
Address for Notices: Suite 2700, 600 Peachtree Street, N.E.
Atlanta, Georgia 30308
Attention: Donna Gardner
cc: 1100 Louisiana, Suite 3000
Houston, Texas 77002
Attention: Janice Ver Hoeve
CANADIAN FACILITY
Canadian Note Amount: US$ 11,718,750.00
Canadian Percentage Share: 3.12500%
AGGREGATE COMMITMENT UNDER US AGREEMENT US$ 25,000,000
AND CANADIAN AGREEMENT
Annex II - Lenders Schedule
THE BANK OF TOKYO - MITSUBISHI
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: The Bank of Tokyo-Mitsubishi Ltd.
Houston Agency
Applicable Lending Office for US Loans: 1100 Louisiana Street
Suite 2800
Houston, Texas 77002-5216
Address for Notices: 1100 Louisiana Street,
Suite 2800
Houston, Texas 77002-5216
Attention: Jay Fort
US TRANCHE A
Not a Tranche A Lender
US TRANCHE B
Tranche B Note Amount (364 day): US$ 32,812,500.00
Tranche B Percentage Share: 5.25000%
CANADIAN AGREEMENT
Name of Affiliate that is Lender under Canadian Agreement: Bank of Tokyo-Mitsubishi (Canada)
(CANADIAN RESIDENT LENDER)
Applicable Lending Office for Canadian Advances: Suite 950 Park Place
666 Burrard Street
Vancouver, British Columbia V6C 3L1
Address for Notices: Suite 950 Park Place
666 Burrard Street
Vancouver, British Columbia V6C 3L1
Attention: Davis J. Stewart
CANADIAN FACILITY
Canadian Note Amount: US$ 19,687,500.00
Canadian Percentage Share: 5.25000%
AGGREGATE COMMITMENT UNDER US AGREEMENT US$ 42,000,000
AND CANADIAN AGREEMENT
Annex II - Lenders Schedule
TORONTO-DOMINION
[TRANCHE A ONLY]
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: Toronto-Dominion (Texas), Inc.
Applicable Lending Office for US Loans: 909 Fannin Street
Suite 1700
Houston, Texas 77010
Address for Notices: 909 Fannin Street
Suite 1700
Houston, Texas 77010
Attention: Mark Green
US TRANCHE A
Tranche A Note Amount (5 year) US$ 6,666,666.67
Tranche A Percentage Share: 3.33333%
US TRANCHE B
Not a Tranche B Lender
CANADIAN AGREEMENT
Not a Canadian Lender
Annex II - Lenders Schedule
UBS AG
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: UBS AG, Stamford Branch
Applicable Lending Office for US Loans: 677 Washington Boulevard
Stamford, Connecticut 06901
Address for Notices: 677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Denise Conzo
US TRANCHE A
Not a Tranche A Lender
US TRANCHE B
Tranche B Note Amount (364 day): US$ 42,578,125.00
Tranche B Percentage Share: 6.81250%
CANADIAN AGREEMENT
Name of Affiliate that is Lender under Canadian Agreement: UBS AG, Stamford Branch
(NON-RESIDENT LENDER)
Applicable Lending Office for Canadian Advances: 677 Washington Boulevard
Stamford, Connecticut 06901
Address for Notices: 677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Denise Conzo
CANADIAN FACILITY
Canadian Note Amount: US$ 25,546,875.00
Canadian Percentage Share: 6.81250%
AGGREGATE COMMITMENT UNDER US AGREEMENT US$ 54,500,000
AND CANADIAN AGREEMENT
Annex II - Lenders Schedule
UMB BANK
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: UMB Bank
Applicable Lending Office for US Loans: 204 N. Robinson
Oklahoma City, Oklahoma 73102
Address for Notices: 204 N. Robinson
Oklahoma City, Oklahoma 73102
Attention: Richard Lehrter
US TRANCHE A
Tranche A Note Amount (5 year): US$ 4,000,000.00
Tranche A Percentage Share: 2.00000%
US TRANCHE B
Tranche B Note Amount (364 day): US$ 7,812,500.00
Tranche B Percentage Share: 1.25000%
CANADIAN AGREEMENT
Name of Affiliate that is Lender under Canadian Agreement: UMB Bank
(NON-RESIDENT LENDER)
Applicable Lending Office for Canadian Advances: 204 N. Robinson
Oklahoma City, Oklahoma 73102
Address for Notices: 204 N. Robinson
Oklahoma City, Oklahoma 73102
Attention: Richard Lehrter
CANADIAN FACILITY
Canadian Note Amount: US$ 4,687,500.00
Canadian Percentage Share: 1.25000%
AGGREGATE COMMITMENT UNDER US AGREEMENT US$ 14,000,000
AND CANADIAN AGREEMENT
Annex II - Lenders Schedule
WACHOVIA BANK
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: Wachovia Bank, National Association
Applicable Lending Office for US Loans: 201 S. College Street, CP-17
Charlotte, North Carolina 28288
Address for Notices: 201 S. College Street, CP-17
Charlotte, North Carolina 28288
Attention: Denise Bobbitt
cc: 1001 Fannin Street, Suite 2255
Houston, Texas 77002
Attention: David Humphreys
US TRANCHE A
Tranche A Note Amount (5 year): US$ 19,333,333.33
Tranche A Percentage Share: 9.66667%
US TRANCHE B
Tranche B Note Amount (364 day): US$ 39,062,500.00
Tranche B Percentage Share: 6.25000%
CANADIAN AGREEMENT
Name of Affiliate that is Lender under Canadian Agreement: Wachovia Bank, National Association
(NON-RESIDENT LENDER)
Applicable Lending Office for Canadian Advances: 201 S. College Street, CP-17
Charlotte, North Carolina 28288
Address for Notices: 201 S. College Street, CP-17
Charlotte, North Carolina 28288
Attention: Denise Bobbitt
cc: 1001 Fannin Street, Suite 2255
Houston, Texas 77002
Attention: David Humphreys
CANADIAN FACILITY
Canadian Note Amount: US$ 23,437,500.00
Canadian Percentage Share: 6.25000%
AGGREGATE COMMITMENT UNDER US AGREEMENT US$ 69,333,333
AND CANADIAN AGREEMENT
Annex II - Lenders Schedule
WESTDEUTSCHE
[TRANCHE A ONLY]
US AGREEMENT
Name of Affiliate that is Lender under US Agreement: Westdeutsche Landesbank Girozentrale
Applicable Lending Office for US Loans: 1211 Avenue of the Americas
New York, New York 10036
Address for Notices: 1211 Avenue of the Americas
New York, New York 10036
Attention: Jeff Davidson
US TRANCHE A
Tranche A Note Amount (5 year): US$ 12,000,000.00
Tranche A Percentage Share: 6.00000%
US TRANCHE B
Not a Tranche B Lender
CANADIAN AGREEMENT
Not a Canadian lender.