EXHIBIT 4.39
------------
SECOND AMENDING AGREEMENT
THIS AGREEMENT dated as of July 31, 2002.
BETWEEN:
NEXEN INC., a corporation subsisting under the laws of Canada
(hereinafter referred to as the "BORROWER"),
OF THE FIRST PART,
- and -
THE FINANCIAL INSTITUTIONS SET FORTH ON THE SIGNATURE PAGE HEREOF UNDER
THE HEADING "LENDERS:" (hereinafter collectively referred to as the
"LENDERS" and sometimes individually referred to as a "LENDER"),
OF THE SECOND PART,
- and -
THE TORONTO-DOMINION BANK, a Canadian chartered bank, as agent of the
Lenders (hereinafter referred to as the "AGENT"),
OF THE THIRD PART.
WHEREAS the parties hereto entered into the Credit Agreement;
AND WHEREAS the parties hereto have agreed to amend and supplement
certain provisions of the Credit Agreement as set out herein;
AND WHEREAS the Lenders have agreed that the Agent execute this
Agreement on their behalf;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
covenants and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby conclusively
acknowledged by each of the parties hereto, the parties hereto covenant and
agree as follows:
2
1. INTERPRETATION
1.1 In this Agreement and the recitals hereto, unless something in the
subject matter or context is inconsistent therewith:
"AGREEMENT" means this agreement, as amended, modified, supplemented or
restated from time to time; and
"CREDIT AGREEMENT" means the Restated Credit Agreement among the
parties hereto originally made as of December 29, 1988 and amended and
restated as of November 17, 2000, as amended by the First Amending
Agreement made as of August 1, 2001 and as otherwise amended,
supplemented, modified or restated from time to time.
1.2 Capitalized terms used herein without express definition shall have the
same meanings herein as are ascribed thereto in the Credit Agreement.
1.3 The division of this Agreement into Sections and the insertion of
headings are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement. The terms "this Agreement",
"hereof", "hereunder" and similar expressions refer to this Agreement and not to
any particular Section or other portion hereof and include any agreements
supplemental hereto.
1.4 This Agreement shall be governed by and construed in accordance with
the laws of the Province of Alberta and federal laws of Canada applicable
therein.
2. AMENDMENTS
2.1 The Credit Agreement is hereby amended as follows:
(a) the definition of "Maturity Date" in Section 1.1 is hereby
amended by deleting the word "fifth" in the second line and
substituting therefor the word "fourth"; and
(b) Clause (a) of Section 2.17 is amended as follows:
(i) by deleting the number "6" in the second line and
substituting therefor the number "5"; and
(ii) by deleting the number "5" in the tenth line and
substituting therefor the number "4".
3
3. REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants as follows to each Lender
and the Agent and acknowledges and confirms that each Lender and the Agent is
relying upon such representations and warranties:
(a) Capacity, Power and Authority
(i) The Borrower is duly incorporated and is validly
subsisting under the laws of its jurisdiction of
incorporation or creation and has all the requisite
corporate capacity, power and authority to carry on
its business as presently conducted and to own its
property; and
(ii) The Borrower has the requisite corporate capacity,
power and authority to execute and deliver this
Agreement.
(b) Authorization; Execution; Enforceability
The Borrower has taken or caused to be taken all necessary
action to authorize, and has duly executed and delivered this
Agreement. This Agreement is a legal, valid and binding
obligation of the Borrower, enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
reorganization, winding up, insolvency, moratorium or other
laws of general application affecting the enforcement of
creditors rights generally and to the equitable and statutory
powers of the courts having jurisdiction with respect thereto.
The representations and warranties set out in this Agreement
shall survive the execution and delivery of this Agreement and
the making of each Drawdown, notwithstanding any
investigations or examinations which may be made by the Agent,
the Lenders or Lenders' counsel. Such representations and
warranties shall survive until the Credit Agreement has been
terminated.
4. MATURITY DATE
The parties hereto confirm that the Maturity Date shall continue to be
July 31, 2007.
5. CONFIRMATION OF CREDIT AGREEMENT AND OTHER DOCUMENTS
The Credit Agreement and all covenants, terms and provisions thereof,
except as expressly amended and supplemented by this Agreement, shall be and
continue to be in full force and effect. The Credit Agreement as amended and
supplemented by this Agreement is hereby ratified and confirmed and shall from
and after the date hereof continue in full force and effect as herein amended
and supplemented.
4
6. FURTHER ASSURANCES
The parties hereto shall from time to time do all such further acts and
things and execute and deliver all such documents as are required in order to
effect the full intent of and fully perform and carry out the terms of this
Agreement.
7. COUNTERPARTS
This Agreement may be executed in any number of counterparts, and by
facsimile, each of which shall be deemed to be an original and all of which
taken together shall be deemed to constitute one and the same instrument, and it
shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart.
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
BORROWER: LENDERS:
NEXEN INC. THE XXXXXXX-XXXXXXXX XXXX
XXXXX XXXX XX XXXXXX
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxxx Xxxxxxx CANADIAN IMPERIAL BANK OF COMMERCE
----------------------------- BANK OF AMERICA, N.A.
Name: Xxxxxxx Xxxxxxx
Title: President & CEO
EACH OF THE FOREGOING LENDERS BY ITS DULY
By: /s/ Xxxx X. Xxxxxxxxxxx AUTHORIZED AGENT:
-----------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Assistant Secretary
THE TORONTO-DOMINION BANK, AS AGENT
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President, Loan
Syndications - Agency
AGENT:
THE TORONTO-DOMINION BANK,
AS AGENT
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President, Loan
Syndications - Agency
