EXHIBIT 10.1
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Published CUSIP Number (Deal): 25179NAA90
Published CUSIP Number (Revolver): 00000XXX0
CREDIT AGREEMENT
DATED AS OF APRIL 8, 2004
among
DEVON ENERGY CORPORATION
as US Borrower
NORTHSTAR ENERGY CORPORATION
and
DEVON CANADA CORPORATION
as Canadian Borrowers
BANK OF AMERICA, N.A.
as Administrative Agent, Swing Line Lender and L/C Issuer
JPMORGAN CHASE BANK
as Syndication Agent
BANK OF MONTREAL D/B/A "XXXXXX XXXXXXX"
ROYAL BANK OF CANADA
WACHOVIA BANK, NATIONAL ASSOCIATION
as Co-Documentation Agents
and
THE OTHER LENDERS PARTY HERETO
BANC OF AMERICA SECURITIES LLC
and
X.X. XXXXXX SECURITIES INC.
as Joint Lead Arrangers and Book Managers
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DEVON CREDIT AGREEMENT
TABLE OF CONTENTS
Section Page
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ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS.......................................................... 1
1.01 Defined Terms............................................................................. 1
1.02 Other Interpretive Provisions............................................................. 34
1.03 Accounting Terms.......................................................................... 35
1.04 Rounding.................................................................................. 35
1.05 References to Agreements and Laws......................................................... 35
1.06 Times of Day.............................................................................. 35
1.07 Letter of Credit Amounts.................................................................. 35
1.08 US Dollar Equivalent...................................................................... 36
ARTICLE II. US COMMITMENTS AND US CREDIT EXTENSION................................................... 36
2.01 US Committed Loans........................................................................ 36
2.02 US Borrowings, Conversions and Continuations of US Committed Loans........................ 36
2.03 US Bid Loans.............................................................................. 38
2.04 US Letters of Credit...................................................................... 41
2.05 US Swing Line Loans....................................................................... 48
2.06 Prepayments............................................................................... 51
2.07 Repayment of US Loans..................................................................... 52
ARTICLE III. CANADIAN SUBFACILITY.................................................................... 52
3.01 Canadian Committed Loans.................................................................. 52
3.02 Canadian Borrowings, Conversions and Continuations of Canadian Committed Loans............ 53
3.03 Canadian Bid Loans........................................................................ 55
3.04 Canadian Letters of Credit................................................................ 58
3.05 Canadian Swing Line Loans................................................................. 66
3.06 Prepayments............................................................................... 70
3.07 Repayment of Canadian Loans............................................................... 71
3.08 Bankers' Acceptances...................................................................... 71
3.09 Currency Fluctuations..................................................................... 75
3.10 Currency Conversion and Currency Indemnity................................................ 76
ARTICLE IV. GENERAL PROVISIONS APPLICABLE TO SENIOR CREDIT FACILITY AND CANADIAN SUBFACILITY......... 77
4.01 Interest on Loans......................................................................... 77
4.02 Fees...................................................................................... 79
4.03 Computation of Interest and Fees on Loans................................................. 80
4.04 Evidence of Debt.......................................................................... 80
4.05 Payments Generally........................................................................ 81
4.06 Sharing of Payments....................................................................... 83
4.07 Canadian Reallocation of the Commitments.................................................. 84
4.08 Extension of Maturity Date................................................................ 85
4.09 Increase in Commitments................................................................... 86
4.10 Termination or Reduction of Commitments................................................... 87
ARTICLE V. TAXES, YIELD PROTECTION AND ILLEGALITY.................................................... 87
5.01 Taxes..................................................................................... 87
5.02 Illegality................................................................................ 89
5.03 Inability to Determine Rates.............................................................. 90
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5.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on US Dollar
Eurodollar Rate Loans, Canadian Dollar Eurodollar Rate Loans, and Canadian US
Eurodollar Rate Committed Loans........................................................... 91
5.05 Compensation for Losses................................................................... 92
5.06 Matters Applicable to all Requests for Compensation....................................... 92
5.07 Survival.................................................................................. 92
ARTICLE VI. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS................................................ 93
6.01 Conditions of Initial Credit Extension.................................................... 93
6.02 Conditions to all Credit Extensions....................................................... 94
ARTICLE VII. REPRESENTATIONS AND WARRANTIES.......................................................... 95
7.01 No Default................................................................................ 95
7.02 Organization and Good Standing............................................................ 95
7.03 Authorization............................................................................. 95
7.04 No Conflicts or Consents.................................................................. 95
7.05 Enforceable Obligations................................................................... 96
7.06 Full Disclosure........................................................................... 96
7.07 Litigation................................................................................ 96
7.08 ERISA Plans and Liabilities............................................................... 96
7.09 Environmental and Other Laws.............................................................. 97
7.10 Material Subsidiaries..................................................................... 97
7.11 Title to Properties; Licenses............................................................. 97
7.12 Government Regulation..................................................................... 97
7.13 Solvency.................................................................................. 97
7.14 Margin Stock.............................................................................. 97
ARTICLE VIII. AFFIRMATIVE COVENANTS.................................................................. 98
8.01 Payment and Performance................................................................... 98
8.02 Books, Financial Statements and Reports................................................... 98
8.03 Other Information and Inspections......................................................... 99
8.04 Notice of Material Events................................................................. 100
8.05 Maintenance of Properties................................................................. 100
8.06 Maintenance of Existence and Qualifications............................................... 100
8.07 Payment of Taxes, etc..................................................................... 101
8.08 Insurance................................................................................. 101
8.09 Compliance with Law....................................................................... 101
8.10 Environmental Matters..................................................................... 101
8.11 Use of Proceeds........................................................................... 101
8.12 Additional Guarantors..................................................................... 101
ARTICLE IX. NEGATIVE COVENANTS OF BORROWERS.......................................................... 102
9.01 Indebtedness.............................................................................. 102
9.02 Limitation on Liens....................................................................... 104
9.03 Fundamental Changes....................................................................... 104
9.04 Fundamental Changes of Canadian Borrowers................................................. 104
9.05 Transactions with Affiliates.............................................................. 105
9.06 Prohibited Contracts...................................................................... 105
9.07 Funded Debt to Total Capitalization....................................................... 105
9.08 Devon Trust; Devon Trust Securities....................................................... 105
ARTICLE X. EVENTS OF DEFAULT AND REMEDIES............................................................ 106
10.01 Events of Default......................................................................... 106
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10.02 Remedies Upon Event of Default............................................................ 108
10.03 Application of Funds Received from the Canadian Borrowers................................. 108
10.04 Application of Funds Received from the US Borrower........................................ 109
10.05 Application of Funds Received under ULC Guaranty.......................................... 110
10.06 Separate Obligations...................................................................... 110
ARTICLE XI. ADMINISTRATIVE AGENT..................................................................... 111
11.01 Appointment and Authorization of Administrative Agent..................................... 111
11.02 Delegation of Duties...................................................................... 111
11.03 Liability of Administrative Agent......................................................... 112
11.04 Reliance by Administrative Agent.......................................................... 112
11.05 Notice of Default......................................................................... 112
11.06 Credit Decision; Disclosure of Information by Administrative Agent........................ 113
11.07 Indemnification of Administrative Agent................................................... 113
11.08 Bank of America in its Individual Capacity................................................ 114
11.09 Successor Administrative Agent............................................................ 114
11.10 Administrative Agent May File Proofs of Claim............................................. 115
11.11 Guaranty Matters.......................................................................... 116
11.12 Arrangers and Managers.................................................................... 116
ARTICLE XII. MISCELLANEOUS........................................................................... 116
12.01 Amendments, Etc........................................................................... 116
12.02 Notices and Other Communications; Facsimile Copies........................................ 117
12.03 No Waiver; Cumulative Remedies............................................................ 119
12.04 Attorney Costs and Expenses............................................................... 119
12.05 Indemnification by the US Borrower........................................................ 120
12.06 Indemnification by Devon Canada........................................................... 120
12.07 Payments Set Aside........................................................................ 121
12.08 Successors and Assigns.................................................................... 122
12.09 Confidentiality........................................................................... 125
12.10 Bank Accounts; Offset..................................................................... 126
12.11 Interest Rate Limitation.................................................................. 127
12.12 Counterparts.............................................................................. 127
12.13 Integration............................................................................... 127
12.14 Survival of Representations and Warranties................................................ 128
12.15 Severability.............................................................................. 128
12.16 Tax Forms................................................................................. 128
12.17 Replacement of Lenders.................................................................... 130
12.18 Governing Law............................................................................. 131
12.19 Waiver of Right to Trial by Jury.......................................................... 131
12.20 USA PATRIOT Act Notice.................................................................... 132
12.21 ENTIRE AGREEMENT.......................................................................... 132
SIGNATURES........................................................................................ S-1
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SCHEDULES
2.01 Commitments and Pro Rata Shares
2.04 Existing US Letters of Credit
3.04 Existing Canadian Letters of Credit
7 Disclosure Schedule
10.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
FORM OF
A (US) US Committed Loan Notice
A(C) Canadian Committed Loan Notice
B(US)-1 US Bid Request
B(C)-1 Canadian Bid Request
B(US)-2 US Competitive Bid
B(C)-2 Canadian Competitive Bid
C(US) US Swing Line Loan Notice
C(C) Canadian Swing Line Loan Notice
D-1 US Note
D-2 Canadian Note
E Compliance Certificate
F Assignment and Assumption
G(US) Guaranty of the US Borrower
G(ULC) Guaranty of Devon Financing ULC
H Opinion Matters
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CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of April 8,
2004, among Devon Energy Corporation, a Delaware corporation (the "US
Borrower"), Northstar Energy Corporation, an Alberta corporation, and Devon
Canada Corporation, a Nova Scotia unlimited company (collectively, the "Canadian
Borrowers," and, together with US Borrower, the "Borrowers"), each lender from
time to time party hereto (collectively, the "Lenders" and individually, a
"Lender"), and BANK OF AMERICA, N.A., as Administrative Agent, Canadian Swing
Line Lender, US Swing Line Lender and L/C Issuer.
The Borrowers have requested that the Lenders provide a revolving
credit facility, and the Lenders are willing to do so on the terms and
conditions set forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Absolute Rate" means a fixed rate of interest expressed in multiples
of 1/100th of one basis point.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged or amalgamated 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 or
amalgamating 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.
"Administrative Agent" means, with respect to the Canadian Borrowers,
Canadian Lenders or the Canadian Subfacility, Bank of America, acting through
its Canadian branch, and otherwise, Bank of America, in each case in its
capacity as administrative agent under any of the Loan Documents, or any
successor administrative agent.
"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 12.02, or such
other address or account as the Administrative Agent may from time to time
notify the Borrowers and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
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"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "Control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto.
"Agent-Related Persons" means the Administrative Agent, together with
its Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, BAS), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"Aggregate Canadian Commitments" means, at any time, the Canadian
Commitments of all Canadian Lenders at such time, which shall not exceed
$500,000,000 in the aggregate.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Aggregate US Commitments" means the US Commitments of all the Lenders.
"Agreement" means this Credit Agreement.
"Applicable Currency" means (i) when used with respect to any US Loan
or US L/C Obligations, US Dollars, and (ii) when used with respect to any
Canadian Prime Rate Loan, any Canadian Dollar Eurodollar Rate Loan or any
Bankers' Acceptance, Canadian Dollars, and (iii) when used with respect to any
Canadian Base Rate Committed Loan or a Canadian US Eurodollar Rate Committed
Loan made under the Canadian SubFacility, US Dollars.
"Applicable Rate" means, from time to time, the number of Basis Points
per annum, based upon the Debt Rating as set forth below:
APPLICABLE RATE
EURODOLLAR
RATE
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LETTERS OF
CREDIT
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STAMPING FEE
FOR BANKERS'
ACCEPTANCES
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CANADIAN
SWING LINE
RATE
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PRICING DEBT RATINGS FACILITY US SWING LINE UTILIZATION
LEVEL S&P/XXXXX'X FEE RATE FEE
------- --------------- -------- ------------- -----------
1 A-/A3 or better 9.00 28.50 10.00
2 BBB+/Baa1 10.00 35.00 10.00
3 BBB/Baa2 12.50 45.00 12.50
4 BBB-/Baa3 15.00 57.50 15.00
5 BB+/Ba1 22.50 90.00 25.00
6 BB/Ba2 or worse 37.50 112.50 25.00
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"Debt Rating" means, as of any date of determination, the
rating as determined by either S&P or Xxxxx'x (collectively, the "Debt
Ratings") of the US Borrower's non-credit-enhanced, senior unsecured
long-term debt; provided that if a Debt Rating is issued by each of the
foregoing rating agencies, then the higher of such Debt Ratings shall
apply (with the Debt Rating for Pricing Level 1 being the highest and
the Debt Rating for Pricing Level 6 being the lowest), unless there is
a split in Debt Ratings of more than one level, in which case the
Pricing Level that is one level lower than the Pricing Level of the
higher Debt Rating shall apply.
Initially, the Applicable Rate shall be determined based upon the Debt Rating
specified in the certificate delivered pursuant to Section 6.01(a)(vi).
Thereafter, each change in the Applicable Rate resulting from a publicly
announced change in the Debt Rating shall be effective during the period
commencing on the date of the public announcement thereof and ending on the date
immediately preceding the effective date of the next such change.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit F.
"Attorney Costs" means and includes all fees, expenses and
disbursements of one US law firm and one Canadian law firm.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of the US Borrower and its Subsidiaries for the fiscal year ended December
31, 2003, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of the US Borrower and
its Subsidiaries, including the notes thereto.
"Availability Period" means the period from and including the Closing
Date to the earliest of (a) the Maturity Date, (b) the date of termination of
the Aggregate Commitments pursuant to Section 4.10, and (c) the date of
termination of the commitment of each Lender to make Loans and of the obligation
of each L/C Issuer to make L/C Credit Extensions pursuant to Section 10.03.
"BA Discount Rate" means, in respect of a BA being accepted by a
Canadian Lender on any date, (i) for a Canadian 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 11:00 a.m. on such drawdown date for bankers' acceptances having a
comparable maturity date as the
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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 Administrative Agent by the Canadian
Schedule I BA Reference Banks as of 11:00 a.m. on such drawdown date for
bankers' acceptances having a comparable maturity date as the maturity date of
such BA; (ii) for a Canadian Lender that is listed in Schedule II to the Bank
Act (Canada), the rate established by the Administrative 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
Administrative Agent by the Canadian Schedule II BA Reference Banks as of 11:00
a.m. on such drawdown date for bankers' acceptances having a comparable maturity
date as the maturity date of such BA; and (iii) for a Canadian Lender that is
listed in Schedule III to the Bank Act (Canada), the rate established by the
Administrative 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 Administrative Agent by the Canadian Schedule III BA
Reference Banks as of 11:00 a.m. on such drawdown date for bankers' acceptances
having a comparable maturity date as the maturity date of such BA.
"Bank of America" means Bank of America, N.A. and its successors.
"Bankers' Acceptance" or "BA" means a Canadian Dollar draft of either
Canadian Borrower, in form acceptable to each accepting Canadian Lender, for,
subject to the availability of a market for Bankers' Acceptances of such term, a
term selected by Canadian Borrower of either 7 to 29, 30, 60, 90 or 180 days (as
reduced or extended by the Administrative Agent, acting reasonably, to allow the
maturity thereof to fall on a Business Day) payable in Canada.
"BAS" means Bank of America Securities LLC.
"Basis Point" means one one-hundredth of one percent (0.01%).
"Bid Request" means a US Bid Request or a Canadian Bid Request, as
applicable.
"Borrower" means any of the US Borrower and the Canadian Borrowers, and
"Borrowers" means all of them, collectively.
"Borrowing" means a US Borrowing or a Canadian Borrowing.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where the Administrative Agent's Office is located and
with respect to the Canadian Subfacility other than a day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in, the
province where the Administrative Agent's Office is located and, (i) if such day
relates to any US Dollar Eurodollar Rate Loan, means any such day on which
dealings in US Dollar deposits are conducted by and between banks in the London
interbank eurodollar market, (ii) if such day relates to any Canadian Dollar
Eurodollar Rate Loan, means any such day on which dealings in Canadian Dollar
deposits are conducted by and between banks in the London interbank eurodollar
market.
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"Canadian Absolute Rate Loan" means a Canadian Bid Loan that bears
interest at a rate determined with reference to an Absolute Rate.
"Canadian Base Rate Committed Loan" means a Canadian Loan denominated
in US Dollars that bears interest based on the Canadian US Dollar Base Rate.
"Canadian Bid Borrowing" means a borrowing consisting of simultaneous
Canadian Bid Loans of the same Type from each of the Canadian Lenders whose
offer to make one or more Canadian Bid Loans as part of such borrowing has been
accepted under the auction bidding procedures described in Section 3.03
"Canadian Bid Loan" has the meaning specified in Section 3.03(a).
"Canadian Bid Loan Lender" means, in respect of any Canadian Bid Loan,
the Canadian Lender making such Canadian Bid Loan to the applicable Canadian
Borrower.
"Canadian Bid Request" means a written request for one or more Canadian
Bid Loans substantially in the form of Exhibit B(C)-1.
"Canadian Borrowers" has the meaning specified in the introductory
paragraph hereto.
"Canadian Borrowing" means a Canadian Committed Borrowing, a Canadian
Bid Borrowing or a Canadian Swing Line Borrowing, as the context may require.
"Canadian Commitment" means, as to each Canadian Lender, its obligation
to (a) make Canadian Committed Loans to the Canadian Borrowers pursuant to
Section 3.01, (b) purchase participations in Canadian L/C Obligations, (c)
purchase participations in Canadian Swing Line Loans, and (d) accept or purchase
Bankers' Acceptances, in each case, in an aggregate principal amount at any one
time outstanding not to exceed its Pro Rata Share of the Aggregate Canadian
Commitment then in effect, or its Canadian Maximum Commitment.
"Canadian Committed Borrowing" means a borrowing consisting of
simultaneous Canadian Committed Loans of the same Type or the acceptance or
purchase of Bankers' Acceptances and, in the case of Canadian Eurodollar Rate
Committed Loans and Canadian US Eurodollar Rate Committed Loans, having the same
Interest Period made by each of the Canadian Lenders pursuant to Section 3.01 or
3.09.
"Canadian Committed Borrowing Notice" means a notice of (a) a Canadian
Committed Borrowing, (b) a conversion of Canadian Committed Loans from one Type
to another, or (c) a continuation of Canadian Eurodollar Rate Committed Loans or
Canadian US Eurodollar Rate Committed Loans, pursuant to Section 3.02(a), which,
if in writing, shall be substantially in the form of Exhibit A(C).
"Canadian Committed Loan" has the meaning specified in Section 3.01.
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"Canadian Competitive Bid" means a written offer by a Canadian Lender
to make one or more Canadian Bid Loans, substantially in the form of Exhibit
B(C)-2, duly completed and signed by a Canadian Lender.
"Canadian Credit Extension" means each of the following: (a) a Canadian
Borrowing and (b) a Canadian L/C Credit Extension.
"Canadian Defaulting Lender" means any Canadian Lender that (a) has
failed to fund any Canadian Committed Loan, accept and purchase any Bankers'
Acceptance or fund any participation in Canadian L/C Obligations or Canadian
Swing Line Loans required to be funded or purchased by it hereunder within one
Business Day of the date required to be funded or purchased by it hereunder and
such failure has not been cured, (b) has otherwise failed to pay over to the
Administrative Agent or any other Canadian Lender any other amount required to
be paid by it hereunder within one Business Day of the date when due, unless the
subject of a good faith dispute, and such failure has not been cured, or (c) has
been deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.
"Canadian Discount Proceeds" means, in respect of each Bankers'
Acceptance, funds in an amount which is equal to:
Face Amount divided by the sum of 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.)
"Canadian Dollar" and "C$" mean lawful money of Canada.
"Canadian Dollar Eurodollar Rate" means for any Interest Period with
respect to a Canadian Dollar Eurodollar Rate Loan:
(a) the rate per annum equal to the rate determined by
the Administrative Agent to be the offered rate (carried to the fifth
decimal place) that appears on the page of the Telerate screen (or any
successor thereto) 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
(b) if the rate referenced in the preceding clause (a)
does not appear on such page or service or such page or service shall
not be available, the rate per annum equal to the rate determined by
the Administrative Agent to be the offered rate (carried to the fifth
decimal place) 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
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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) if the rates referenced in the preceding clauses (a)
and (b) are not available, the rate per annum determined by the
Administrative 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 Canadian Dollar
Eurodollar Rate Loan being made, continued or converted by Bank of
America (or, in the case of a Canadian Bid Loan, the applicable
Canadian Bid Loan Lender) and with a term equivalent to such Interest
Period would be offered by Bank of America's (or such Canadian Bid Loan
Lender's) 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.
"Canadian Dollar Eurodollar Rate Loan" means a Canadian Eurodollar Rate
Committed Loan or a Canadian Eurodollar Margin Bid Loan.
"Canadian Eurodollar Bid Margin" means the margin above or below the
Canadian Dollar Eurodollar Rate to be added to or subtracted from the Canadian
Dollar Eurodollar Rate, which margin shall be expressed in multiples of 1/100th
of one Basis Point.
"Canadian Eurodollar Margin Bid Loan" means a Canadian Bid Loan that
bears interest at a rate based upon the Canadian Dollar Eurodollar Rate.
"Canadian Eurodollar Rate Committed Loan" means a Canadian Committed
Loan that bears interest at a rate based on the Canadian Dollar Eurodollar Rate.
"Canadian Guaranty" means (i) the guaranty of the Canadian Obligations
made by Devon Financing ULC in favor of the Administrative Agent on behalf of
the Canadian Lenders under the ULC Guaranty, and (ii) the guaranty of the
Canadian Obligations made by the US Borrower in favor of the Administrative
Agent on behalf of the Canadian Lenders under the U. S. Borrower Guaranty.
"Canadian Guarantors" means, collectively, the US Borrower and Devon
Financing ULC.
"Canadian L/C Advance" means, with respect to each Canadian Lender,
such Canadian Lender's funding of its participation in any Canadian L/C
Borrowing in accordance with its Pro Rata Share.
"Canadian L/C Borrowing" means an extension of credit resulting from a
drawing under any Letter of Credit which has not been reimbursed on the date
when made or refinanced as a Canadian Committed Borrowing.
"Canadian L/C Credit Extension" means, with respect to any Canadian
Letter of Credit, the issuance thereof or extension of the expiry date thereof,
or the increase of the amount thereof.
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"Canadian L/C Issuer" means (i) Bank of America, (ii)Royal Bank of
Canada, or (iii) any other Canadian Lender that may issue Canadian Letters of
Credit hereunder, as mutually agreed to by Administrative Agent and Canadian
Borrowers, in such Person's capacity as issuer of Canadian Letters of Credit
hereunder, or any successor issuer of Canadian Letters of Credit hereunder.
"Canadian L/C Obligations" means, as at any date of determination, the
aggregate undrawn amount of all outstanding Canadian Letters of Credit plus the
aggregate of all Canadian Unreimbursed Amounts, including all Canadian L/C
Borrowings. For all purposes of this Agreement, if on any date of determination
a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of
Credit shall be deemed to be "outstanding" in the amount so remaining available
to be drawn.
"Canadian Lender" means each Lender designated as such on the signature
pages hereto or to the Assignment and Assumption pursuant to which such Lender
became a party hereto, as applicable, and the successors of each such party as
the holder of Canadian Obligations.
"Canadian Lending Office" means, as to any Canadian Lender, the office
or offices of such Canadian Lender under its name on Schedule 10.02 or in the
Assignment and Assumption pursuant to which it became a party hereto, or such
other office of such Canadian Lender as such Canadian Lender may from time to
time specify to the Canadian Borrower and the Administrative Agent.
"Canadian Letter of Credit" means any Letter of Credit issued by the
Canadian L/C Issuer under Article III hereunder and shall include the Existing
Canadian Letters of Credit. A Letter of Credit may be a commercial letter of
credit or a standby letter of credit.
"Canadian Letter of Credit Application" means an application and
agreement for the issuance or amendment of a Canadian Letter of Credit in the
form from time to time in use by the Canadian L/C Issuer and acceptable to the
Canadian Borrowers.
"Canadian Letter of Credit Fee" has the meaning specified in Section
3.04(i).
"Canadian Letter of Credit Sublimit" means an amount equal to US
$250,000,000. The Canadian Letter of Credit Sublimit is part of, and not in
addition to, the Aggregate Canadian Commitments.
"Canadian Loan" means an extension of credit by a Canadian Lender to
any Canadian Borrower under Section 3.01 in the form of a Canadian Committed
Loan, a Canadian Bid Loan or a Canadian Swing Line Loan.
"Canadian Maximum Commitment" means, as to each Canadian Lender, the
amount set forth on Schedule 2.01 and designated as such Canadian Lender's
"Canadian Maximum Commitment", as such amount may be adjusted from time to time
in accordance with this Agreement.
DEVON CREDIT AGREEMENT
8
"Canadian Net Proceeds" means with respect to any Bankers' Acceptance,
the Canadian Discount Proceeds less the amount equal to the applicable Canadian
stamping fee payable with respect thereto pursuant to Section 4.02.
"Canadian Note" means a promissory note made by each Canadian Borrower
in favor of a Canadian Lender evidencing Canadian Loans made by such Canadian
Lender, substantially in the form of Exhibit D-2.
"Canadian Obligations" means all Obligations arising under or with
respect to the Canadian SubFacility.
"Canadian Payment Office" means the office of the Administrative Agent
located at 000 Xxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx or such other
office as the Administrative Agent may designate by written notice to the other
parties hereto.
"Canadian Prime Rate" means for any day a fluctuating rate per annum
equal to the higher of (a) the BA Discount Rate for Bank of America, acting
through its Canadian branch, for Bankers' Acceptances having a maturity of
thirty days plus the Applicable Rate, and (b) the rate of interest in effect for
such day as publicly announced from time to time by Bank of America, acting
through its Canadian branch, as its "reference rate" for Canadian Dollar
commercial loans made to a Person in Canada. The "reference 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.
"Canadian Prime Rate Committed Loan" means a Canadian Committed Loan
that is a Canadian Prime Rate Loan.
"Canadian Prime Rate Loan" means a Canadian Loan denominated in
Canadian Dollars that bears interest at the Canadian Prime Rate.
"Canadian Re-allocation" means a reallocation of the Aggregate
Commitments pursuant to Section 4.07.
"Canadian Required Lenders" means, as of any date of determination,
Canadian Lenders having more than 50% of the Aggregate Canadian Commitments or,
if the commitment of each Canadian Lender to make Canadian Committed Loans, and
the obligation of each Canadian L/C Issuer to make Canadian L/C Credit
Extensions have been terminated and the obligation of each Canadian Lender to
purchase or accept Bankers' Acceptances has been terminated pursuant to Section
10.02, Canadian Lenders holding in the aggregate more than 50% of the Total
Canadian Outstandings (with the aggregate amount of each Canadian Lender's risk
participation and funded participation in Canadian L/C Obligations and Canadian
Swing Line Loans being deemed "held" by such Canadian Lender for purposes of
this definition); provided that the Canadian Commitment of, and the portion of
the Total Canadian Outstandings held or deemed held by, any
DEVON CREDIT AGREEMENT
9
Canadian Defaulting Lender shall be excluded for purposes of making a
determination of Canadian Required Lenders.
"Canadian Resident Lender" means a Person that (i) is not a
non-resident of Canada for the purposes of the Income Tax Act (Canada) or (ii)
is an "authorized foreign bank" as defined in subsection 248(1) of the Income
Tax Act (Canada) which will receive all amounts paid or credited to it with
respect to Canadian Credit Extensions and other Canadian Obligations and fees
and other amounts payable in connection therewith in respect of its "Canadian
banking business" for the purposes of paragraph 212(13.3)(a) of the Income Tax
Act (Canada).
"Canadian Schedule I BA Reference Banks" means the Canadian Lenders
listed in Schedule I to the Bank Act (Canada) as are, at such time, designated
by Administrative Agent, with the prior consent of the Canadian Borrowers
(acting reasonably), as the Schedule I BA Reference Banks.
"Canadian Schedule II BA Reference Banks" means the Canadian Lenders
listed in Schedule II to the Bank Act (Canada) as are, at such time, designated
by Administrative Agent, with the prior consent of the Canadian Borrowers
(acting reasonably), as the Canadian Schedule II BA Reference Banks.
"Canadian Schedule III BA Reference Banks" means the Canadian Lenders
listed in Schedule III to the Bank Act (Canada) as are, at such time, designated
by Administrative Agent, with the prior consent of the Canadian Borrowers
(acting reasonably), as the Canadian Schedule III BA Reference Banks.
"Canadian Stamping Fee Rate" means with respect to any Bankers'
Acceptance accepted by any Canadian Lender at any time, a percentage per annum
equal to the Applicable Rate then in effect; provided that if an Event of
Default has occurred and is continuing, the Canadian Stamping Fee Rate shall be
increased by 2% per annum.
"Canadian SubFacility" means the Credit Extensions under Article III.
"Canadian Swing Line" means the revolving credit facility made
available by the Canadian Swing Line Lender pursuant to Section 3.05.
"Canadian Swing Line Borrowing" means a borrowing of a Canadian Swing
Line Loan pursuant to Section 3.05.
"Canadian Swing Line Lender" means Bank of America, acting through its
Canadian branch, or any other Canadian Lender that may provide Canadian Swing
Line Loans hereunder, as mutually agreed to by Administrative Agent and Canadian
Borrowers, in such Person's capacity as provider of Canadian Swing Line Loans
hereunder, or any successor swing line lender hereunder.
"Canadian Swing Line Loan" has the meaning specified in Section
3.05(a).
DEVON CREDIT AGREEMENT
10
"Canadian Swing Line Loan Notice" means a notice of a Canadian Swing
Line Borrowing pursuant to Section 3.05(b), which, if in writing, shall be
substantially in the form of Exhibit C.
"Canadian Swing Line Rate" means on any day a fluctuating rate of
interest per annum established from time to time by Canadian Swing Line Lender
as its money market rate for the applicable currency, which rate may not be the
lowest rate of interest charged by Canadian Swing Line Lender to its customers,
plus the Applicable Rate.
"Canadian Swing Line Sublimit" means an amount equal to the lesser of
(a) US $25,000,000 and (b) the Aggregate Canadian Commitments. The Canadian
Swing Line Sublimit is part of, and not in addition to, the Aggregate Canadian
Commitments.
"Canadian Unreimbursed Amount" has the meaning specified in Section
3.04(c)(i).
"Canadian US Dollar Base Rate" means for any day a fluctuating rate per
annum equal to the higher of (a) the Federal Funds Rate plus 50 Basis Points and
(b) the rate of interest in effect for such day as publicly announced from time
to time by Bank of America, acting through its Canadian Branch, as its
"reference rate" for US Dollar commercial loans made to a Person in Canada. The
"reference rate" is a rate set by Bank of America, acting through its Canadian
branch, 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,
acting through its Canadian branch, shall take effect at the opening of business
on the day specified in the public announcement of such change.
"Canadian US Eurodollar Rate Committed Loan" means a Canadian
Committed Loan that bears interest at a rate based on the US Dollar Eurodollar
Rate.
"Cash Collateralize" means (i) with respect to US Letters of Credit,
that the US Borrower shall pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the US L/C Issuer and the Lenders, as
collateral for the US L/C Obligations, cash or deposit account balances pursuant
to documentation in form and substance reasonably satisfactory to the
Administrative Agent and the US L/C Issuer (which documents are hereby consented
to by the Lenders), (ii) with respect to Canadian Letters of Credit, that the
applicable Canadian Borrower shall pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Canadian L/C Issuer and the
Canadian Lenders, as collateral for the Canadian L/C Obligations, cash or
deposit account balances pursuant to documentation in form and substance
reasonably satisfactory to the Administrative Agent and the Canadian L/C Issuer
(which documents are hereby consented to by the Canadian Lenders), and (iii)
with respect to Bankers' Acceptances, that the applicable Canadian Borrower
shall pledge and deposit with or deliver to the Administrative Agent for the
benefit of the Canadian Lenders, as collateral for the Outstanding Amount of
Bankers' Acceptances, cash or deposit account balances pursuant to documentation
in form and substance reasonably satisfactory to the Administrative Agent (which
documents are hereby consented to by the Canadian Lenders). Derivatives of such
term have corresponding meanings.
DEVON CREDIT AGREEMENT
11
"Change in Law" means, with respect to any Lender, the adoption of any
law or change in any existing Law or interpretation thereof after the date of
this Agreement or, if such Lender became a Lender hereunder after the date of
this Agreement, after the date it became a Lender hereunder.
"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), other than a Shareholder Controlled Person, acquires more
than fifty percent (50%) of the Voting Stock of the US Borrower, 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 or who were appointed,
elected or nominated by a majority of such directors cease to be directors of US
Borrower, unless such cessation results from death or permanent disability or
relates to a voluntary reduction by US Borrower of the number of directors that
comprise the board of directors of US Borrower. As used in this definition, (i)
the term "Voting Stock" means with respect to any Person, the outstanding stock
of such Person having ordinary voting power (disregarding changes in voting
power based on the occurrence of contingencies) for the election of directors;
and (ii) the term "Shareholder Controlled Person" means a Person as to which
more than fifty percent (50%) of the Voting Stock is owned by Persons who owned
more than fifty percent (50%) of the Voting Stock of the US Borrower immediately
before any acquisition described in clause (i) of this definition.
"Closing Date" means the first date all the conditions precedent in
Section 6.01 are satisfied or waived in accordance with Section 12.01.
"Code" means the Internal Revenue Code of 1986.
"Committed Loan Notice" means a US Committed Loan Notice or a Canadian
Committed Borrowing Notice, as applicable.
"Committed Loans" means, collectively, the US Committed Loans and the
Canadian Committed Loans.
"Commitment" means as to each Lender, the amount set forth opposite
such Lender's name on Schedule 2.01 or in the Assignment and Assumption pursuant
to which such Lender becomes a party hereto, as applicable, and designated as
such Lender's "Commitment", as such amount may be adjusted from time to time in
accordance with this Agreement, which, if applicable, also includes such
Lender's Canadian Maximum Commitment.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit E.
"Consolidated Assets" means the total assets of the US Borrower and its
Subsidiaries which would be shown as assets on a consolidated balance sheet of
US Borrower prepared in accordance with GAAP, after eliminating all amounts
properly attributable to minority interest, if any, in the stock and surplus of
the Restricted Subsidiaries.
DEVON CREDIT AGREEMENT
12
"Consolidated Net Worth" means the sum (without duplication) of (i) the
US Borrower's consolidated shareholder's equity plus (ii) 60% of the outstanding
balance of the Devon Trust Securities. Consolidated Net Worth 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 SEC regulation, or
by GAAP.
"Consolidated Total Funded Debt" means the sum of (i) Indebtedness of
US Borrower referred to in clauses (a), (b), (c), (d) and (e) of the definition
of "Indebtedness" in Section 1.1, plus (ii) 40% of the outstanding balance of
the Devon Trust Securities, plus (iii) all Swap Funded Debt, plus (iv) all
Synthetic Lease Funded Debt. Consolidated Total Funded Debt shall not include
the PennzEnergy Exchangeable Debentures.
As used in this definition, (1) the term "Swap Funded Debt" means, in
the event that an Early Termination Date (as defined in the applicable Swap
Contract) has occurred under a Swap Contract resulting from (A) any event of
default under such Swap Contract as to which any Borrower or any Subsidiary is
the Defaulting Party (as defined in such Swap Contract) or (B) any Termination
Event (as so defined) under such Swap Contract as to which any Borrower or any
Subsidiary is an Affected Party (as so defined), and the Uncontested Portion of
the Swap Termination Value for such Swap Contract that has not been paid within
sixty (60) days after the date when due exceeds US $150,000,000, the amount of
such Uncontested Portion; and (2) the term "Synthetic Lease Funded Debt" means,
in the event that the US Borrower or any Subsidiary (A) has failed to pay when
due any Synthetic Lease Obligation, or (B) has failed to observe or perform any
other agreement or condition relating to any Synthetic Lease Obligation, or any
other event or condition occurs that permits the holders thereof to demand
prepayment or redemption, and the holder or holders thereof have demanded or
caused such Synthetic Lease Obligation to become due or to be prepaid or
redeemed (automatically or otherwise), prior to its stated maturity and the
aggregate Uncontested Portion of the Attributable Indebtedness with respect to
such Synthetic Lease Obligations of the US Borrower and its Subsidiaries that
has not been paid within 60 days after the date when due exceeds US
$150,000,000, the amount of such Uncontested Portion.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" has the meaning specified in the definition of "Affiliate."
"Credit Extension" means each of the following: (a) a Borrowing and (b)
a L/C Credit Extension.
"Debt Rating" has the meaning specified in the definition of
"Applicable Rate."
"Debtor Relief Laws" means the Bankruptcy Code of the United States,
and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the
DEVON CREDIT AGREEMENT
13
United States or other applicable jurisdictions from time to time in effect and
affecting the rights of creditors generally and with respect to the Canadian
Borrowers, the Bankruptcy and Insolvency Act (Canada), the Companies' Creditors
Arrangement Act (Canada), the Winding-up Act (Canada) and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws of Canada or other applicable jurisdictions from time to time
in effect and affecting the rights of creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any requisite notice and the passage of any
requisite periods of time, would be an Event of Default.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the US Committed Loans, participations in US L/C Obligations or
participations in US Swing Line Loans required to be funded by it hereunder
within one Business Day of the date required to be funded by it hereunder and
such failure has not been cured, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required to be paid by
it hereunder within one Business Day of the date when due, unless the subject of
a good faith dispute, and such failure has not been cured, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Devon Canada" means Devon Canada Corporation, a Nova Scotia unlimited
company.
"Devon Financing ULC" means Devon Financing Corporation, U.L.C., a Nova
Scotia unlimited company.
"Devon Financing ULC Guaranties" means the Guaranties executed by Devon
Financing ULC and delivered to Administrative Agent pursuant to this Agreement.
"Devon Oklahoma" means Devon Energy Corporation (Oklahoma), an Oklahoma
corporation, formerly known as Devon Energy Corporation, an Oklahoma
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 October 4,
2002 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, and the issuance by Devon Financing ULC of debt
securities guaranteed by the US Borrower, as amended, supplemented or replaced
from time to time.
"Devon Trust Securities" means those certain Trust Preferred Securities
issuable by Devon Trust, as described in the Devon Trust Registration Statement.
DEVON CREDIT AGREEMENT
14
"Disclosure Report" means a written notice given by a Responsible
Officer of the US Borrower to all Lenders or a certificate given by a
Responsible Officer of the US Borrower under Sections 8.02(a) and (b).
"Disclosure Schedule" means Schedule 7 to this Agreement.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"Eligible Assignee" has the meaning specified in Section 12.08(g).
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the US Borrower, any other Loan Party or any of
their respective Subsidiaries directly or indirectly resulting from or based
upon (a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the US Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the US Borrower
or any ERISA Affiliate or to which the US Borrower or any ERISA Affiliate
contributes or has an obligation to contribute.
"Event of Default" has the meaning specified in Section 10.01.
"Existing Canadian Credit Agreement" means the Amended and Restated
Canadian Credit Agreement dated as of June 7, 2002 among the Canadian Borrowers,
Bank of America acting through its Canadian Branch as Administrative Agent, L/C
Issuer and Swing Lender, and a syndicate of lenders.
DEVON CREDIT AGREEMENT
15
"Existing US Credit Agreement" means the Amended and Restated US Credit
Agreement dated as of June 7, 2002 among the US Borrower, Bank of America, as
Administrative Agent, L/C Issuer and Swing Lender, and a syndicate of lenders.
"Existing Canadian Letters of Credit" means the Letters of Credit
listed in Schedule 3.04, which were issued under the Existing Canadian Credit
Agreement.
"Existing US Letters of Credit" means the Letters of Credit listed in
Schedule 2.04, which were issued under the Existing US Credit Agreement.
"Federal Funds Rate" means, for any day, the rate per annum 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 of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Fee Letter" means (i) with respect to the Administrative Agent fee and
the Letter of Credit fronting fees of Bank of America, as US L/C Issuer and
Canadian L/C Issuer, the letter agreement, dated March 12, 2004, between the US
Borrower and Bank of America, (ii) with respect to each other L/C Issuer, the
letter agreement between the Borrower and such L/C Issuer which sets forth the
fronting fee for Letters of Credit issued hereunder by such L/C Issuer, and
(iii) with respect to upfront fees and arrangement fees, the letter agreement,
dated March 12, 2004, among the US Borrower, Bank of America, XX Xxxxxx and the
Joint Lead Arrangers.
"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.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means any nation or government, any state,
province or other political subdivision thereof, any agency, authority,
instrumentality, regulatory body, court,
DEVON CREDIT AGREEMENT
16
administrative tribunal, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
"Guarantee" means, as to any Person, any (a) any obligation, contingent
or otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person, exclusive, in each case, of endorsements
in the ordinary course of business. The amount of any Guarantee shall be deemed
to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith. The term "Guarantee" as a verb has a corresponding meaning.
"Guaranties" means the US Guaranty and the Canadian Guaranties.
"Guarantors" means the US Guarantor and the Canadian Guarantors.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and
all obligations of such Person evidenced by bonds, debentures, notes,
loan agreements or other similar instruments;
(b) all obligations of such Person to pay the deferred
purchase price of property or services (other than trade accounts
payable in the ordinary course of business);
DEVON CREDIT AGREEMENT
17
(c) indebtedness (excluding prepaid interest thereon)
secured by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;
(d) capital leases, but excluding customary oil, gas or
mineral leases entered into in the ordinary course of business;
(e) all obligations 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) all direct or contingent obligations of such Person
arising under letters of credit (including standby and commercial), and
bankers' acceptances;
(g) net obligations of such Person under any Swap
Contract;
(h) Synthetic Lease Obligations; and
(i) all Guarantees of such Person in respect of any of
the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date. The amount of Indebtedness of
any Person with respect to Indebtedness of others secured by a Lien to which the
property or assets owned or held by such Person is subject shall be equal, to
the extent such Indebtedness is otherwise non-recourse to such Person, to the
lesser of the fair market value of the property or assets subject to such Lien
and the amount of the Indebtedness secured.
"Indemnified Liabilities" has the meaning specified in Section 12.05.
"Indemnitees" has the meaning specified in Section 12.05.
"Interest Payment Date" means, (a) as to any Loan other than a US Base
Rate Loan, a Canadian Base Rate Committed Loan and a Canadian Prime Rate Loan,
the last day of each Interest Period applicable to such Loan and the Maturity
Date; provided, however, that if any Interest Period for a US Dollar Eurodollar
Rate Loan or a Canadian US Eurodollar Rate Committed Loan exceeds three months,
the respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any US Base
Rate Loan, Canadian Base Rate Committed Loan or Canadian Prime Rate Loan
(including a US
DEVON CREDIT AGREEMENT
18
Swing Line Loan and a Canadian Swing Line Loan), the last Business Day of each
March, June, September and December and the Maturity Date.
"Interest Period" means (a) as to each US Dollar Eurodollar Rate Loan,
each Canadian Dollar Eurodollar Rate Loan and each Canadian US Eurodollar Rate
Committed Loan, the period commencing on the date such Loan is disbursed or (in
the case of any US Eurodollar Rate Committed Loan, Canadian Eurodollar Rate
Committed Loan or US Eurodollar Rate Committed Loan) converted to or continued
as a US Dollar Eurodollar Rate Loan or a Canadian Eurodollar Rate Committed Loan
or US Eurodollar Rate Committed Loan, respectively, and ending on the date one,
two, three, six or , if available, nine or twelve months thereafter, as selected
by the applicable Borrower in its Committed Loan Notice or Bid Request, as the
case may be; and (b) as to each US Absolute Rate Loan and each Canadian Absolute
Rate Loan, a period of not less than 14 days and not more than 180 days as
selected by the applicable Borrower in its Bid Request; provided that:
(i) any Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding
Business Day unless, in the case of a US Dollar Eurodollar Rate Loan,
Canadian Dollar Eurodollar Rate Loan or US Eurodollar Rate Committed
Loan, such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period pertaining to a US Dollar
Eurodollar Rate Loan, Canadian Dollar Eurodollar Rate Loan or a
Canadian US Eurodollar Rate Committed Loan that begins on the last
Business Day of 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 of the calendar
month at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity
Date.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means (a) with respect to any US Letter of Credit,
the US Letter of Credit Application, and any other document, agreement and
instrument entered into by the US L/C Issuer and the US Borrower (or any
Subsidiary) or in favor of the US L/C Issuer and relating to any such US Letter
of Credit, and (b) with respect to any Canadian Letter of Credit, the Canadian
Letter of Credit Application, and any other document, agreement and instrument
entered into by the Canadian L/C Issuer and any Canadian Borrower (or any
Subsidiary) or in favor of the Canadian L/C Issuer and relating to any such
Canadian Letter of Credit.
"Joint Lead Arrangers" means BAS and X.X. Xxxxxx Securities Inc., in
their capacities as joint lead arrangers and book managers.
DEVON CREDIT AGREEMENT
19
"XX Xxxxxx" means XX Xxxxxx Xxxxx Bank and its successors.
"L/C Credit Extension" means a US L/C Credit Extension or a Canadian
L/C Credit Extension.
"L/C Obligations" means, collectively, the US L/C Obligations and the
Canadian L/C Obligations.
"L/C Issuer" means a US L/C Issuer or a Canadian L/C Issuer.
"Laws" means, collectively, all international, foreign, federal, state,
provincial and local statutes, treaties, rules, guidelines, regulations,
ordinances, codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration
thereof, and all applicable administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any Governmental
Authority.
"Lenders" means all Lenders (including the applicable Lenders in their
capacity as Canadian Lenders) and includes the US L/C Issuer, the Canadian L/C
Issuer, and the US Swing Line Lender and the Canadian Swing Line Lender, and
"Lender" means any one of them.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrowers
and the Administrative Agent.
"Letter of Credit" means a US Letter of Credit or a Canadian Letter of
Credit.
"Letter of Credit Expiration Date" means the day that is seven days
prior to the Maturity Date then in effect (or, if such day is not a Business
Day, the next preceding Business Day).
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, and any financing lease having
substantially the same economic effect as any of the foregoing).
"Loan" means a US Loan or a Canadian Loan.
"Loan Documents" means this Agreement, each Note, each Issuer Document,
the Fee Letter, the BAs and the Guaranties.
"Loan Parties" means, collectively, the Borrowers and each Guarantor.
"Margin Stock" means "margin stock" as defined in Reg U.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, or financial
condition of the US Borrower and
DEVON CREDIT AGREEMENT
20
its Subsidiaries taken as a whole; (b) a material impairment of the ability of
any Loan Party to perform its payment obligations under any Loan Document to
which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan
Document to which it is a party.
"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.
"Maturity Date" means the later of (a) April 8, 2009, and (b) if
maturity is extended pursuant to Section 4.08, such extended maturity date as
determined pursuant to Section 4.08 (it being understood and agreed that any
such maturity shall not be deemed extended for any Lender that has not consented
to such extension).
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor
thereto.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the US Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.
"Non-US Lender" has the meaning specified in Section 12.16(a)(i).
"Northstar Energy" means Northstar Energy Corporation, an Alberta
corporation.
"Note" means a US Note or a Canadian Note.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
DEVON CREDIT AGREEMENT
21
"Outstanding Amount" means (i) with respect to US Committed Loans, US
Bid Loans, and US Swing Line Loans on any date, the aggregate outstanding
principal amount thereof after giving effect to any borrowings and prepayments
or repayments of US Committed Loans, US Bid Loans, and US Swing Line Loans, as
the case may be, occurring on such date; (ii) with respect to any US L/C
Obligations on any date, the amount of such US L/C Obligations on such date
after giving effect to any US L/C Credit Extension occurring on such date and
any other changes in the aggregate amount of the US L/C Obligations as of such
date, including as a result of any reimbursements of outstanding unpaid drawings
under any US Letters of Credit or any reductions in the maximum amount available
for drawing under US Letters of Credit taking effect on such date; (iii) with
respect to Canadian Committed Loans, Canadian Bid Loans, and Canadian Swing Line
Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of Canadian
Committed Loans, Canadian Bid Loans, and Canadian Swing Line Loans, as the case
may be, occurring on such date; and (iv) with respect to any Canadian L/C
Obligations on any date, the amount of such Canadian L/C Obligations on such
date after giving effect to any Canadian L/C Credit Extension occurring on such
date and any other changes in the aggregate amount of the Canadian L/C
Obligations as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under any Canadian Letters of Credit or any
reductions in the maximum amount available for drawing under Canadian Letters of
Credit taking effect on such date, and (v) with respect to any Bankers'
Acceptances, the aggregate outstanding face amount of such Bankers' Acceptances
after giving effect to the acceptances, maturities and rollovers thereof on such
date.
"Participant" has the meaning specified in Section 12.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"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.
"Permitted Liens" means:
(a) Liens for taxes, assessments or governmental charges
which are not due or delinquent, or the validity of which any
Restricted Person shall be contesting in good faith; provided such
Restricted Person shall have made adequate provision therefor in
accordance with GAAP;
(b) the Lien of any judgment rendered, or claim filed,
against any Restricted Person which does not constitute an Event of
Default and which such Restricted Person
DEVON CREDIT AGREEMENT
22
shall be contesting in good faith; provided such Restricted Person
shall have made adequate provision therefor in accordance with 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 any Restricted Person 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 such Restricted Person shall
be contesting in good faith; provided such Restricted Person shall have
made adequate provision therefor in accordance with 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 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 any
Restricted Person's 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 such Restricted Person shall be contesting in good faith;
provided such Restricted Person shall have made adequate provision
therefor in accordance with GAAP;
(f) overriding royalty interests, net profit interests,
reversionary interests and carried interests or other similar burdens
on production in respect of any Restricted Person's 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 any Restricted
Person's oil and gas properties if such Liens do not materially detract
from the value of any material part of the property of the Restricted
Persons taken as a whole;
(h) easements, rights-of-way, servitudes, zoning or other
similar rights or restrictions in respect of land held by any
Restricted Person (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
DEVON CREDIT AGREEMENT
23
materially detract from the value of such land or materially impair its
use in the operation of the business of the Restricted Persons taken as
a whole;
(i) security given by the Restricted Persons 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 the Restricted Persons in connection with operations of the
Restricted Persons if such security does not, either alone or in the
aggregate, materially detract from the value of any material part of
the property of the Restricted Persons 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;
(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 any
Restricted Person to the Administrative Agent which is consented to by
the Required 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 any Restricted Person;
(n) Liens on cash or marketable securities of any
Restricted Persons granted in connection with any Swap Contract
permitted under this Agreement;
(o) Liens in respect of Indebtedness permitted by
Sections 9.01(b), 9.01(f), 9.01(h) and Indebtedness permitted to be
secured by Section 9.01(c);
(p) Liens in favor of the Administrative 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 any Restricted Person 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
DEVON CREDIT AGREEMENT
24
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 any Restricted Person'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 any Restricted Person, other than a dedication of
reserves (not by way of Lien or absolute assignment) on usual industry
terms;
(t) Liens arising in respect of operating leases of
personal property under which Canadian Borrowers or any of their
Subsidiaries, or any other Subsidiaries of US Borrower that are
incorporated or organized in Canada or one of the provinces thereof,
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 Restricted
Subsidiary, 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 Restricted Subsidiary;
(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 (except for the purpose of paying any prepayment premium or
any fees and expenses incurred in connection with any such extension,
renewal or replacement) 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 Administrative 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 any natural person, corporation, limited liability
company, unlimited liability company, trust, joint venture, association,
company, partnership, Governmental Authority or other entity.
DEVON CREDIT AGREEMENT
25
"Pro Rata Share" means, (a) with respect to each Lender and the Credit
Extensions at any time, a fraction (expressed as a percentage and carried to the
ninth decimal place) the numerator of which is the amount of the Commitment of
such Lender at such time and the denominator of which is the Aggregate
Commitment at such time, (b) with respect to the US Credit Extensions of each
Lender at any time, a fraction (expressed as a percentage, carried out to the
ninth decimal place), the numerator of which is the amount of the US Commitment
of such Lender at such time and the denominator of which is the amount of the
Aggregate US Commitments at such time, and (c) with respect to the Canadian
Credit Extensions of each Canadian Lender at any time, a fraction (expressed as
a percentage, carried out to the ninth decimal place), the numerator of which is
the amount of the Canadian Commitment of such Canadian Lender at such time and
the denominator of which is the amount of the Aggregate Canadian Commitments at
such time; provided that if the commitment of each Lender to make Loans and the
obligation of each L/C Issuer to make L/C Credit Extensions and the obligation
to accept and purchase BAs have been terminated pursuant to Section 10.02, then
the Pro Rata Share of each Lender shall be determined based on the Pro Rata
Share of such Lender immediately prior to such termination and after giving
effect to any subsequent assignments made pursuant to the terms hereof. The
initial Pro Rata Share of each Lender is set forth opposite the name of such
Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which
such Lender becomes a party hereto, as applicable.
"Register" has the meaning specified in Section 12.08(c).
"Reg U" means Regulation U promulgated by the Board of Governors of the
Federal Reserve System.
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30 day notice period has been waived.
"Request for US Credit Extension" means (a) with respect to a US
Borrowing, conversion or continuation of US Committed Loans, a US Committed Loan
Notice, (b) with respect to a US Bid Loan, a US Bid Request, (c) with respect to
a US L/C Credit Extension, a US Letter of Credit Application, and (d) with
respect to a US Swing Line Loan, a US Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination, Lenders
having more than 50% of the Aggregate Commitments or, if the commitment of each
Lender to make Loans and the obligation of each L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 10.02, Lenders holding in
the aggregate more than 50% of the Total Outstandings (with the aggregate amount
of each Lender's risk participation and funded participation in L/C Obligations
and Swing Line Loans being deemed "held" by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, vice president - corporate finance, vice president -
finance, or treasurer of a Loan Party.
DEVON CREDIT AGREEMENT
26
Any document delivered hereunder that is signed by a Responsible Officer of a
Loan Party shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any capital stock or
other equity interest of the US Borrower or any Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such capital stock or other
equity interest or of any option, warrant or other right to acquire any such
capital stock or other equity interest.
"Restricted Person" means any of the US Borrower and the Restricted
Subsidiaries.
"Restricted Subsidiary" means each of the Canadian Borrowers, Devon
Oklahoma, Devon Financing ULC, Devon Trust and any other Material Subsidiary of
US Borrower.
"S&P" means Standard & Poor's Ratings Services, a division of the
XxXxxx-Xxxx Companies, Inc. and any successor thereto.
"SEC" means the United States Securities and Exchange Commission, or
any Governmental Authority succeeding to any of its principal functions.
"SEC Filings" has the meaning specified in Section 7.06.
"Shareholders' Equity" means, as of any date of determination,
consolidated shareholders' equity of the US Borrower and its Subsidiaries as of
that date determined in accordance with GAAP.
"Subordinated US Borrower Debentures" means those certain Convertible
Junior Subordinated Debentures which may be issued by the US Borrower to Devon
Trust , as described in the Devon Trust Registration Statement, which will be
subordinate to the Obligations.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company, unlimited liability company, or other
business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other
governing body (other than securities or interests having such power only by
reason of the happening of a contingency) are at the time beneficially owned, or
the management of which is otherwise controlled, directly, or indirectly through
one or more intermediaries, or both, 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
DEVON CREDIT AGREEMENT
27
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. Unless otherwise specified, all references herein
to a "Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or
Subsidiaries of the US Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line Loans" means, collectively, the US Swing Ling Loans and the
Canadian Swing Line Loans.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment), other than obligations under
(i) the Production Platform Lease Agreement 2002-1, dated as of June 27, 2002,
between Devon Louisiana corporation, a Louisiana corporation ("Devon
Louisiana"), as lessee, and Ocean Energy/Bloomvang Platform Statutory Trust
2002-1, a Delaware statutory business trust, as lessor, the Operative Documents
(as defined therein) and the Other Operative Documents (as
DEVON CREDIT AGREEMENT
28
defined therein), and (ii) the Production Platform Lease Agreement 2002-1, dated
as of January 29, 2002, between Devon Louisiana, as lessee, and Ocean
Energy/Nansen Platform Statutory Trust 2002-1, a Delaware statutory business
trust, as lessor, the Operative Documents (as defined therein) and the Other
Operative Documents (as defined therein), in each case, as amended,
supplemented, amended and restated, refinanced or replaced from time to time.
"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.
"Threshold Amount" means at any time, the greater of US $250,000,000
and 2.5% of Consolidated Net Worth determined as of the end of the most recent
Fiscal Quarter.
"Total Canadian Outstandings" means the aggregate Outstanding Amount of
all Canadian Loans, all Canadian L/C Obligations, and all Bankers' Acceptances.
"Total Capitalization" means the sum (without duplication) of (i)
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 SEC Regulation, or by GAAP.
"Total Outstandings" means the aggregate amount of all Total US
Outstandings and all Total Canadian Outstandings.
"Total US Outstandings" means the aggregate Outstanding Amount of all
US Loans and all US L/C Obligations.
"Type" means (i) with respect to a US Committed Loan, its character as
a US Base Rate Loan or a US Dollar Eurodollar Rate Loan, (ii) with respect to a
US Bid Loan, its character as a US Absolute Rate Loan or a US Eurodollar Margin
Bid Loan, (iii) with respect to a Canadian Committed Borrowing, its character as
a Canadian Prime Rate Loan, a Canadian Base Rate
DEVON CREDIT AGREEMENT
29
Committed Loan, a Canadian Dollar Eurodollar Rate Loan or a US Dollar Eurodollar
Rate Loan or a BA, (iv) with respect to a Canadian Bid Loan, its character as a
Canadian Absolute Rate Loan or a Canadian Eurodollar Margin Bid Loan.
"ULC Guaranty" means the Guaranty made by Devon Financing ULC,
substantially in the form of Exhibit G(ULC).
"United States" and "U.S." mean the United States of America.
"Uncontested Portion" means, with respect to any Swap Termination Value
or any Synthetic Lease Obligation, the amount thereof that is not being
contested by the US Borrower or one of its Subsidiaries diligently in good
faith.
"Unrestricted Subsidiary" means any Subsidiary of the US Borrower that
is not a Restricted Subsidiary.
"US Absolute Rate Loan" means a US Bid Loan that bears interest at a
rate determined with reference to an Absolute Rate.
"US Base Rate" means for any day a fluctuating rate per annum equal to
the higher of (a) the Federal Funds Rate plus 50 Basis Points and (b) the rate
of interest in effect for such day as publicly announced from time to time by
Bank of America as its "prime rate." The "prime 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 Base Rate Committed Loan" means a US Committed Loan that is a US
Base Rate Loan.
"US Base Rate Loan" means a US Loan that bears interest based on the US
Base Rate.
"US Bid Borrowing" means a borrowing consisting of simultaneous US Bid
Loans of the same Type from each of the Lenders whose offer to make one or more
US Bid Loans as part of such borrowing has been accepted under the auction
bidding procedures described in Section 2.03.
"US Bid Loan" has the meaning specified in Section 2.03(a).
"US Bid Loan Lender" means, in respect of any US Bid Loan, the Lender
making such US Bid Loan to the US Borrower.
"US Bid Request" means a written request for one or more US Bid Loans
substantially in the form of Exhibit B-1.
"US Borrower" has the meaning specified in the introductory paragraph
hereto.
DEVON CREDIT AGREEMENT
30
"US Borrower Guaranty" means the Guaranty made by the US Borrower,
substantially in the form of Exhibit G(US).
"US Borrowing" means a US Committed Borrowing, a US Bid Borrowing or a
US Swing Line Borrowing, as the context may require.
"US Commitment" means, as to each Lender, its obligation to (a) make US
Committed Loans to the US Borrower pursuant to Section 2.01, (b) purchase
participations in US L/C Obligations, and (c) purchase participations in US
Swing Line Loans, in an aggregate principal amount at any one time outstanding
not to exceed the such Lender's Commitment minus its (or its Affiliate's)
Canadian Commitment, if any.
"US Committed Borrowing" means a borrowing consisting of simultaneous
US Committed Loans of the same Type and, in the case of US Eurodollar Rate
Committed Loans, having the same Interest Period made by each of the Lenders
pursuant to Section 2.01.
"US Committed Loan" has the meaning specified in Section 2.01.
"US Committed Loan Notice" means a notice of (a) a US Committed
Borrowing, (b) a conversion of US Committed Loans from one Type to the other, or
(c) a continuation of US Eurodollar Rate Committed Loans, pursuant to Section
2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.
"US Competitive Bid" means a written offer by a Lender to make one or
more US Bid Loans, substantially in the form of Exhibit B-2, duly completed and
signed by a Lender.
"US Credit Extension" means each of the following: (a) a US Borrowing
and (b) a US L/C Credit Extension.
"US Dollar" and "US $" mean lawful money of the United States.
"US Dollar Equivalent" means, on any date of determination, the
equivalent in US Dollars of any value or sum denominated in Canadian Dollars
using the rate of exchange quoted by Bank of Canada on the Business Day
preceding the day as of which any determination of such rate is required to be
made under the terms hereof as the noon mid-market spot rate for conversions of
Canadian Dollars into US Dollars.
"US Dollar Eurodollar Rate" means for any Interest Period with respect
to a US Dollar Eurodollar Rate Loan or a Canadian US Eurodollar Rate Committed
Loan:
(a) the rate per annum equal to the rate (carried to the
fifth decimal place) determined by the Administrative 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 for deposits in US 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
DEVON CREDIT AGREEMENT
31
(b) if the rate referenced in the preceding clause (a)
does not appear on such page or service or such page or service shall
not be available, the rate per annum (carried to the fifth decimal
place) equal to the rate determined by the Administrative 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 US 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) if the rates referenced in the preceding clauses (a)
and (b) are not available, the rate per annum determined by the
Administrative Agent as the rate of interest at which deposits in US
Dollars for delivery on the first day of such Interest Period in same
day funds in the approximate amount of the US Dollar Eurodollar Rate
Loan being made, continued or converted by Bank of America (or, in the
case of a US Bid Loan, the applicable US Bid Loan Lender) and with a
term equivalent to such Interest Period would be offered by Bank of
America's (or such US Bid Loan Lender's) 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 Dollar Eurodollar Rate Loan" means a US Eurodollar Rate Committed
Loan or a US Eurodollar Margin Bid Loan.
"US Eurodollar Bid Margin" means the margin above or below the US
Dollar Eurodollar Rate to be added to or subtracted from the US Dollar
Eurodollar Rate, which margin shall be expressed in multiples of 1/100th of one
basis point.
"US Eurodollar Margin Bid Loan" means a US Bid Loan that bears interest
at a rate based upon the US Dollar Eurodollar Rate.
"US Eurodollar Rate Committed Loan" means a US Committed Loan that
bears interest at a rate based on the US Dollar Eurodollar Rate.
"US Guarantor" means Devon Financing ULC.
"US Guaranty" means the guaranty of the US Obligations made by the US
Guarantor in favor of the Administrative Agent on behalf of the Lenders under
the ULC Guaranty.
"US L/C Advance" means, with respect to each Lender, such Lender's
funding of its participation in any US L/C Borrowing in accordance with its Pro
Rata Share.
"US L/C Borrowing" means an extension of credit resulting from a
drawing under any US Letter of Credit which has not been reimbursed on the date
when made or refinanced as a US Committed Borrowing.
"US L/C Credit Extension" means, with respect to any US Letter of
Credit, the issuance thereof or extension of the expiry date thereof, or the
increase of the amount thereof.
DEVON CREDIT AGREEMENT
32
"US L/C Issuer" means Bank of America, XX Xxxxxx, or any other Lender
that may issue US Letters of Credit hereunder, as mutually agreed to by
Administrative Agent and US Borrower and such Lender, in such Person's capacity
as issuer of US Letters of Credit hereunder, or any successor issuer of US
Letters of Credit hereunder.
"US L/C Obligations" means, as at any date of determination, the
aggregate undrawn amount of all outstanding US Letters of Credit plus the
aggregate of all US Unreimbursed Amounts, including all US L/C Borrowings. For
all purposes of this Agreement, if on any date of determination a US Letter of
Credit has expired by its terms but any amount may still be drawn thereunder by
reason of the operation of Rule 3.14 of the ISP, such US Letter of Credit shall
be deemed to be "outstanding" in the amount so remaining available to be drawn.
"US Letter of Credit" means any letter of credit issued hereunder and
shall include the Existing US Letters of Credit. A US Letter of Credit may be a
commercial letter of credit or a standby letter of credit.
"US Letter of Credit Application" means an application and agreement
for the issuance or amendment of a US Letter of Credit in the form from time to
time in use by the US L/C Issuer and acceptable to the US Borrower.
"US Letter of Credit Fee" has the meaning specified in Section 2.04(i).
"US Letter of Credit Sublimit" means an amount equal to US
$1,000,000,000 minus the Canadian Letter of Credit Sublimit. The US Letter of
Credit Sublimit is part of, and not in addition to, the Aggregate US
Commitments.
"US Loan" means an extension of credit by a Lender to the US Borrower
under Article II in the form of a US Committed Loan, a US Bid Loan or a US Swing
Line Loan.
"US Note" means a promissory note made by the US Borrower in favor of a
Lender evidencing US Loans made by such Lender, substantially in the form of
Exhibit D-1.
"US Obligations" means all Obligations other than Canadian Obligations.
"US Required Lenders" means, as of any date of determination, Lenders
having more than 50% of the Aggregate US Commitments or, if the commitment of
each Lender to make US Committed Loans and the obligation of each US L/C Issuer
to make US L/C Credit Extensions have been terminated, Lenders holding in the
aggregate more than 50% of the Total US Outstandings (with the aggregate amount
of each Lender's risk participation and funded participation in US L/C
Obligations and US Swing Line Loans being deemed "held" by such Lender for
purposes of this definition); provided that the US Commitment of, and the
portion of the Total US Outstandings held or deemed held by, any US Defaulting
Lender shall be excluded for purposes of making a determination of US Required
Lenders.
"US Swing Line" means the revolving credit facility made available by
the US Swing Line Lender pursuant to Section 2.05.
DEVON CREDIT AGREEMENT
33
"US Swing Line Borrowing" means a borrowing of a US Swing Line Loan
pursuant to Section 2.05.
"US Swing Line Lender" means Bank of America or any other Lender that
may provide US Swing Line Loans hereunder, as mutually agreed to by
Administrative Agent and the US Borrower, in such Person's capacity as provider
of US Swing Line Loans hereunder, or any successor swing line lender hereunder.
"US Swing Line Loan" has the meaning specified in Section 2.05(a).
"US Swing Line Loan Notice" means a notice of a US Swing Line Borrowing
pursuant to Section 2.05(b), which, if in writing, shall be substantially in the
form of Exhibit C.
"US Swing Line 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 Rate.
"US Swing Line Sublimit" means an amount equal to the lesser of (a) US
$25,000,000 and (b) the Aggregate US Commitments. The US Swing Line Sublimit is
part of, and not in addition to, the Aggregate US Commitments.
"US Unreimbursed Amount" has the meaning specified in Section
2.04(c)(i).
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and "hereunder" and
words of similar import when used in any Loan Document shall refer to such Loan
Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are
to the Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all
instruments, documents, agreements, certificates, notices, reports,
financial statements and other writings, however evidenced, whether in
physical or electronic form.
(c) In the computation of periods of time from a specified date to
a later specified date, the word "from" means "from and including;" the words
"to" and "until" each mean "to but excluding;" and the word "through" means "to
and including."
DEVON CREDIT AGREEMENT
34
(d) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. (a) All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either
the US Borrower or the Required Lenders shall so request, the Administrative
Agent, the Lenders and the US Borrower shall negotiate in good faith to amend
such ratio or requirement to preserve the original intent thereof in light of
such change in GAAP (subject to the approval of the Required Lenders and the US
Borrower); provided that, until so amended, (i) such ratio or requirement shall
continue to be computed in accordance with GAAP prior to such change therein and
(ii) the US Borrower shall provide to the Administrative Agent and the Lenders
financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to
such change in GAAP.
1.04 ROUNDING. Any financial ratios required to be maintained by
the US Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to Organization Documents, agreements (including
the Loan Documents) and other contractual instruments shall be deemed to include
all subsequent amendments, restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
1.06 TIMES OF DAY. Unless otherwise specified, all references
herein to times of day made with respect to the Canadian SubFacility shall be
references to Eastern time (daylight or standard, as applicable), and all other
references herein to times of day shall be references to Central time (daylight
or standard, as applicable).
1.07 LETTER OF CREDIT AMOUNTS. Unless otherwise specified, all
references herein to the amount of a Letter of Credit at any time shall be
deemed to mean the maximum face amount of such Letter of Credit after giving
effect to all increases thereof contemplated by such Letter of
DEVON CREDIT AGREEMENT
35
Credit or the Issuer Documents related thereto, whether or not such maximum face
amount is in effect at such time.
1.08 US DOLLAR EQUIVALENT. Except for the purposes of determining
any amounts under Section 3.10, for the purposes of determining any amount
relating to any Commitment or any Obligation or any amount referred to in any
representation or warranty, covenant or Default, where such amount is the result
of any mathematical calculation or equation which includes amounts denominated
in Canadian Dollars together with amounts denominated in US Dollars, all
relevant amounts included in such calculation or equation that are denominated
in Canadian Dollars shall be calculated, as of such time of determination, at
the US Dollar Equivalent thereof.
ARTICLE II.
US COMMITMENTS AND US CREDIT EXTENSION
2.01 US COMMITTED LOANS. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make loans (each such loan, a "US
Committed Loan") to the US Borrower from time to time, on any Business Day
during the Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of the US Commitment of such Lender; provided, however,
that after giving effect to any US Committed Borrowing, (i) the Total US
Outstandings shall not exceed the Aggregate US Commitments, and (ii) the
aggregate Outstanding Amount of the US Committed Loans of any Lender, plus such
Lender's Pro Rata Share of the Outstanding Amount of all US L/C Obligations,
plus such Lender's Pro Rata Share of the Outstanding Amount of all US Swing Line
Loans shall not exceed the US Commitment of such Lender. Within the limits of
the US Commitment of each Lender, and subject to the other terms and conditions
hereof, the US Borrower may borrow under this Section 2.01, prepay under Section
2.06, and reborrow under this Section 2.01. US Committed Loans may be US Base
Rate Loans or US Eurodollar Rate Committed Loans, as further provided herein.
2.02 US BORROWINGS, CONVERSIONS AND CONTINUATIONS OF US COMMITTED
LOANS.
(a) Each US Committed Borrowing, each conversion of US Committed
Loans from one Type to the other, and each continuation of US Eurodollar Rate
Committed Loans shall be made upon the US Borrower's irrevocable notice to
(except as provided in Section 5.03(a)) the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Administrative
Agent not later than 11:00 a.m. (i) two Business Days prior to the requested
date of any US Borrowing of, conversion to or continuation of US Eurodollar Rate
Committed Loans or of any conversion of US Eurodollar Rate Committed Loans to US
Base Rate Committed Loans, and (ii) on the requested date of any US Borrowing of
US Base Rate Committed Loans. Each telephonic notice by the US Borrower pursuant
to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written US Committed Loan Notice, appropriately
completed and signed by a Responsible Officer of the US Borrower. Each US
Borrowing of, conversion to or continuation of US Eurodollar Rate Committed
Loans shall be in a principal amount of US $5,000,000 or a whole multiple of US
$1,000,000 in excess thereof. Except as provided in Sections 2.04(c) and
2.05(c), each US Borrowing of or conversion to US Base Rate Committed Loans
shall be in a principal amount of US $1,000,000
DEVON CREDIT AGREEMENT
36
or a whole multiple of US $100,000 in excess thereof. Each US Committed Loan
Notice (whether telephonic or written) shall specify (i) whether the US Borrower
is requesting a US Committed Borrowing, a conversion of US Committed Loans from
one Type to the other, or a continuation of US Eurodollar Rate Committed Loans,
(ii) the requested date of the US Borrowing, conversion or continuation, as the
case may be (which shall be a Business Day), (iii) the principal amount of US
Committed Loans to be borrowed, converted or continued, (iv) the Type of US
Committed Loans to be borrowed or to which existing US Committed Loans are to be
converted, and (v) if applicable, the duration of the Interest Period with
respect thereto. If the US Borrower fails to specify a Type of US Committed Loan
in a US Committed Loan Notice or if the US Borrower fails to give a timely
notice requesting a conversion or continuation, then the applicable US Committed
Loans shall be made as, or converted to, US Base Rate Loans. Any such automatic
conversion to US Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable US Eurodollar Rate
Committed Loans. If the US Borrower requests a US Committed Borrowing of,
conversion to, or continuation of US Eurodollar Rate Committed Loans in any such
US Committed Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.
(b) Following receipt of a US Committed Loan Notice, the
Administrative Agent shall promptly notify each Lender of the amount of its Pro
Rata Share of the applicable US Committed Loans, and if no timely notice of a
conversion or continuation is provided by the US Borrower, the Administrative
Agent shall notify each Lender of the details of any automatic conversion to US
Base Rate Loans described in the preceding subsection. In the case of a US
Committed Borrowing, each Lender shall make the amount of its US Committed Loan
available to the Administrative Agent in immediately available funds at the
Administrative Agent's Office not later than 1:00 p.m. on the Business Day
specified in the applicable US Committed Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 6.02 (and, if such US Borrowing is
the initial US Credit Extension, Section 6.01), the Administrative Agent shall
make all funds so received available to the US Borrower in like funds as
received by the Administrative Agent either by (i) crediting the account of the
US Borrower on the books of Bank of America with the amount of such funds or
(ii) wire transfer of such funds, in each case in accordance with instructions
provided to (and reasonably acceptable to) the Administrative Agent by the US
Borrower; provided, however, that if, on the date the US Committed Loan Notice
with respect to such US Borrowing is given by the US Borrower, there are US L/C
Borrowings outstanding, then the proceeds of such US Borrowing, first, shall be
applied, to the payment in full of any such US L/C Borrowings, and second, shall
be made available to the US Borrower as provided above.
(c) Except as otherwise provided herein, a US Eurodollar Rate
Committed Loan may be continued or converted only on the last day of an Interest
Period for such US Eurodollar Rate Committed Loan. During the existence of a
Default, no Loans may be requested as, converted to or continued as US
Eurodollar Rate Committed Loans without the consent of the US Required Lenders.
(d) The Administrative Agent shall promptly notify the US Borrower
and the Lenders of the interest rate applicable to any Interest Period for US
Eurodollar Rate Committed Loans
DEVON CREDIT AGREEMENT
37
upon determination of such interest rate. The determination of the US Dollar
Eurodollar Rate by the Administrative Agent shall be conclusive in the absence
of manifest error. At any time that US Base Rate Loans are outstanding, the
Administrative Agent shall notify the US Borrower and the Lenders of any change
in Bank of America's prime rate used in determining the US Base Rate promptly
following the public announcement of such change.
(e) After giving effect to all US Committed Borrowings, all
conversions of US Committed Loans from one Type to the other, and all
continuations of US Committed Loans as the same Type, there shall not be more
than ten Interest Periods in effect with respect to US Committed Loans.
2.03 US BID LOANS.
(a) General. Subject to the terms and conditions set forth herein,
each Lender agrees that the US Borrower may from time to time request the
Lenders to submit offers to make loans (each such loan, a "US Bid Loan") for
requested maturities of thirty (30) days or more to the US Borrower prior to the
Maturity Date pursuant to this Section 2.03; provided, however, that after
giving effect to any US Bid Borrowing, the Total US Outstandings shall not
exceed the Aggregate US Commitments. There shall not be more than five different
Interest Periods in effect with respect to US Bid Loans at any time.
(b) Requesting US Competitive Bids. The US Borrower may request
the submission of US Competitive Bids by delivering a US Bid Request to the
Administrative Agent not later than 12:00 noon (i) one Business Day prior to the
requested date of any US Bid Borrowing that is to consist of US Absolute Rate
Loans, or (ii) four Business Days prior to the requested date of any US Bid
Borrowing that is to consist of US Eurodollar Margin Bid Loans. Each US Bid
Request shall specify (i) the requested date of the US Bid Borrowing (which
shall be a Business Day), (ii) the aggregate principal amount of US Bid Loans
requested (which must be US $5,000,000 or a whole multiple of US $1,000,000 in
excess thereof), (iii) the Type of US Bid Loans requested, and (iv) the duration
of the Interest Period with respect thereto, and shall be signed by a
Responsible Officer of the US Borrower. No US Bid Request shall contain a
request for (i) more than one Type of US Bid Loan or (ii) US Bid Loans having
more than three different Interest Periods. Unless the Administrative Agent
otherwise agrees in its sole and absolute discretion, the US Borrower may not
submit a US Bid Request if it has submitted another US Bid Request within the
prior five Business Days.
(c) Submitting US Competitive Bids.
(i) The Administrative Agent shall promptly notify each
Lender of each US Bid Request received by it from the US Borrower and
the contents of such US Bid Request.
(ii) Each Lender may (but shall have no obligation to)
submit a US Competitive Bid containing an offer to make one or more US
Bid Loans in response to such US Bid Request. Such US Competitive Bid
must be delivered to the Administrative Agent not later than 10:30 a.m.
(A) on the requested date of any US Bid Borrowing that
DEVON CREDIT AGREEMENT
38
is to consist of US Absolute Rate Loans, and (B) three Business Days
prior to the requested date of any US Bid Borrowing that is to consist
of US Eurodollar Margin Bid Loans; provided, however, that any US
Competitive Bid submitted by Bank of America in its capacity as a
Lender in response to any US Bid Request must be submitted to the
Administrative Agent not later than 10:15 a.m. on the date on which US
Competitive Bids are required to be delivered by the other Lenders in
response to such US Bid Request. Each US Competitive Bid shall specify
(A) the proposed date of the US Bid Borrowing; (B) the principal amount
of each US Bid Loan for which such US Competitive Bid is being made,
which principal amount (x) may be equal to, greater than or less than
the US Commitment of the bidding Lender, (y) must be US $5,000,000 or a
whole multiple of US $1,000,000 in excess thereof, and (z) may not
exceed the principal amount of US Bid Loans for which US Competitive
Bids were requested; (C) if the proposed US Bid Borrowing is to consist
of US Absolute Rate Loans, the Absolute Rate offered for each such US
Bid Loan and the Interest Period applicable thereto; (D) if the
proposed US Bid Borrowing is to consist of US Eurodollar Margin Bid
Loans, the US Eurodollar Bid Margin with respect to each such US
Eurodollar Margin Bid Loan and the Interest Period applicable thereto;
and (E) the identity of the bidding Lender.
(iii) Any US Competitive Bid shall be disregarded if it (A)
is received after the applicable time specified in clause (ii) above,
(B) is not substantially in the form of a US Competitive Bid as
specified herein, (C) contains qualifying, conditional or similar
language, (D) proposes terms other than or in addition to those set
forth in the applicable US Bid Request, or (E) is otherwise not
responsive to such US Bid Request. Any Lender may correct a US
Competitive Bid containing a manifest error by submitting a corrected
US Competitive Bid (identified as such) not later than the applicable
time required for submission of US Competitive Bids. Any such
submission of a corrected US Competitive Bid shall constitute a
revocation of the US Competitive Bid that contained the manifest error.
The Administrative Agent may, but shall not be required to, notify any
Lender of any manifest error it detects in such Lender's US Competitive
Bid.
(iv) Subject only to the provisions of Sections 5.02, 5.03
and 6.02 and clause (iii) above, each US Competitive Bid shall be
irrevocable.
(d) Notice to US Borrower of US Competitive Bids. Not later than
11:00 a.m. (i) on the requested date of any US Bid Borrowing that is to consist
of US Absolute Rate Loans, or (ii) three Business Days prior to the requested
date of any US Bid Borrowing that is to consist of US Eurodollar Margin Bid
Loans, the Administrative Agent shall notify the US Borrower of the identity of
each Lender that has submitted a US Competitive Bid that complies with Section
2.03(c) and of the terms of the offers contained in each such US Competitive
Bid.
(e) Acceptance of US Competitive Bids. Not later than 11:30 a.m.
(i) on the requested date of any US Bid Borrowing that is to consist of US
Absolute Rate Loans, and (ii) three Business Days prior to the requested date of
any US Bid Borrowing that is to consist of US Eurodollar Margin Bid Loans, the
US Borrower shall notify the Administrative Agent of its acceptance or rejection
of the offers notified to it pursuant to Section 2.03(d). The US Borrower shall
be under no obligation to accept any US Competitive Bid and may choose to reject
all US
DEVON CREDIT AGREEMENT
39
Competitive Bids. In the case of acceptance, such notice shall specify the
aggregate principal amount of US Competitive Bids for each Interest Period that
is accepted. The US Borrower may accept any US Competitive Bid in whole or in
part; provided that:
(i) the aggregate principal amount of each US Bid
Borrowing may not exceed the applicable amount set forth in the related
US Bid Request;
(ii) the principal amount of each US Bid Loan must be US
$5,000,000 or a whole multiple of US $1,000,000 in excess thereof;
(iii) the acceptance of offers may be made only on the
basis of ascending Absolute Rates or US Eurodollar Bid Margins within
each Interest Period; and
(iv) the US Borrower may not accept any offer that is
described in Section 2.03(c)(iii) or that otherwise fails to comply
with the requirements hereof.
(f) Procedure for Identical US Bids. If two or more Lenders have
submitted US Competitive Bids at the same Absolute Rate or US Eurodollar Bid
Margin, as the case may be, for the same Interest Period, and the result of
accepting all of such US Competitive Bids in whole (together with any other US
Competitive Bids at lower Absolute Rates or US Eurodollar Bid Margins, as the
case may be, accepted for such Interest Period in conformity with the
requirements of Section 2.03(e)(iii)) would be to cause the aggregate
outstanding principal amount of the applicable US Bid Borrowing to exceed the
amount specified therefor in the related US Bid Request, then, unless otherwise
agreed by the US Borrower, the Administrative Agent and such Lenders, such US
Competitive Bids shall be accepted as nearly as possible in proportion to the
amount offered by each such Lender in respect of such Interest Period, with such
accepted amounts being rounded to the nearest whole multiple of US $1,000,000.
(g) Notice to Lenders of Acceptance or Rejection of US Bids. The
Administrative Agent shall promptly notify each Lender having submitted a US
Competitive Bid whether or not its offer has been accepted and, if its offer has
been accepted, of the amount of the US Bid Loan or US Bid Loans to be made by it
on the date of the applicable US Bid Borrowing. Any US Competitive Bid or
portion thereof that is not accepted by the US Borrower by the applicable time
specified in Section 2.03(e) shall be deemed rejected.
(h) Notice of US Dollar Eurodollar Rate. If any US Bid Borrowing
is to consist of US Eurodollar Margin Bid Loans, the Administrative Agent shall
determine the US Dollar Eurodollar Rate for the relevant Interest Period, and
promptly after making such determination, shall notify the US Borrower and the
Lenders that will be participating in such US Bid Borrowing of such US Dollar
Eurodollar Rate.
(i) Funding of US Bid Loans. Each Lender that has received notice
pursuant to Section 2.03(g) that all or a portion of its US Competitive Bid has
been accepted by the US Borrower shall make the amount of its US Bid Loan(s)
available to the Administrative Agent in immediately available funds at the
Administrative Agent's Office not later than 1:00 p.m. on the date of the
requested US Bid Borrowing. Upon satisfaction of the applicable conditions set
forth
DEVON CREDIT AGREEMENT
40
in Section 6.02, the Administrative Agent shall make all funds so received
available to the US Borrower in like funds as received by the Administrative
Agent.
(j) Notice of Range of US Bids. After each US Competitive Bid
auction pursuant to this Section 2.03, the Administrative Agent shall notify
each Lender that submitted a US Competitive Bid in such auction of the ranges of
bids submitted (without the bidder's name) and accepted for each US Bid Loan and
the aggregate amount of each US Bid Borrowing.
2.04 US LETTERS OF CREDIT.
(a) The US Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein,
(A) the US L/C Issuer agrees, in reliance upon the agreements of the
other Lenders set forth in this Section 2.04, (1) from time to time on
any Business Day during the period from the Closing Date until the
Letter of Credit Expiration Date, to issue US Letters of Credit for the
account of the US Borrower, and to amend or renew US Letters of Credit
previously issued by it, in accordance with subsection (b) below, and
(2) to honor drawings under the US Letters of Credit; and (B) the
Lenders severally agree to participate in US Letters of Credit issued
for the account of the US Borrower and any drawings thereunder;
provided that after giving effect to any US L/C Credit Extension with
respect to any US Letter of Credit, (x) the Total US Outstandings shall
not exceed the Aggregate US Commitments, (y) the aggregate Outstanding
Amount of the US Committed Loans of any Lender, plus such Lender's Pro
Rata Share of the Outstanding Amount of all US L/C Obligations, plus
such Lender's Pro Rata Share of the Outstanding Amount of all US Swing
Line Loans shall not exceed such Lender's US Commitment, and (z) the
Outstanding Amount of the US L/C Obligations shall not exceed the US
Letter of Credit Sublimit. Each request by the US Borrower for the
issuance or amendment of a US Letter of Credit shall be deemed to be a
representation by the US Borrower that the US L/C Credit Extension so
requested complies with the conditions set forth in the proviso to the
preceding sentence. Within the foregoing limits, and subject to the
terms and conditions hereof, the US Borrower's ability to obtain US
Letters of Credit shall be fully revolving, and accordingly the US
Borrower may, during the foregoing period, obtain US Letters of Credit
to replace US Letters of Credit that have expired or that have been
drawn upon and reimbursed. All Existing US Letters of Credit shall be
deemed to have been issued pursuant hereto, and from and after the
Closing Date shall be subject to and governed by the terms and
conditions hereof.
(ii) The US L/C Issuer shall not issue any US Letter of
Credit, if the expiry date of such requested US Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date.
(iii) The US L/C Issuer shall not be under any obligation
to issue any US Letter of Credit if:
DEVON CREDIT AGREEMENT
41
(A) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the US L/C Issuer from issuing
such US Letter of Credit, or any Law applicable to the US L/C
Issuer or any request or directive (whether or not having the
force of law) from any Governmental Authority with
jurisdiction over the US L/C Issuer shall prohibit, or request
that the US L/C Issuer refrain from, the issuance of letters
of credit generally or such US Letter of Credit in particular
or shall impose upon the US L/C Issuer with respect to such US
Letter of Credit any restriction, reserve or capital
requirement (for which the US L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or
shall impose upon the US L/C Issuer any unreimbursed loss,
cost or expense which was not applicable on the Closing Date
and which the US L/C Issuer in good xxxxx xxxxx material to
it, unless the US Borrower confirms that it will pay the
foregoing;
(B) the issuance of such US Letter of Credit
would violate any Laws;
(C) except as otherwise agreed by the
Administrative Agent and the US L/C Issuer, such US Letter of
Credit is in an initial face amount less than US $10,000;
(D) such US Letter of Credit is to be
denominated in a currency other than US Dollars; or
(E) if the US L/C Issuer is JPMorgan, if such US
Letter of Credit is to be issued after the Closing Date unless
such US Letter of Credit renews, amends or replaces a US
Letter of Credit previously issued by JPMorgan or one of its
Affiliates.
(iv) The US L/C Issuer shall not amend any US Letter of
Credit if the US L/C Issuer would not be permitted at such time to
issue such US Letter of Credit in its amended form under the terms
hereof.
(v) The US L/C Issuer shall be under no obligation to
amend any US Letter of Credit if (A) the US L/C Issuer would have no
obligation at such time to issue such US Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such US
Letter of Credit does not accept the proposed amendment to such US
Letter of Credit.
(b) Procedures for Issuance and Amendment of US Letters of Credit.
(i) Each US Letter of Credit shall be issued or amended,
as the case may be, upon the request of the US Borrower delivered to
the US L/C Issuer (with a copy to the Administrative Agent) in the form
of a US Letter of Credit Application, appropriately completed and
signed by a Responsible Officer of the US Borrower. Such US Letter of
Credit Application must be received by the US L/C Issuer and the
Administrative Agent not later than 11:00 a.m. at least two Business
Days (or such later date and time as the
DEVON CREDIT AGREEMENT
42
Administrative Agent and the US L/C Issuer may agree in a particular
instance in their sole discretion) prior to the proposed issuance date
or date of amendment, as the case may be. In the case of a request for
an initial issuance of a US Letter of Credit, such US Letter of Credit
Application shall specify in form and detail satisfactory to the US L/C
Issuer: (A) the proposed issuance date of the requested US Letter of
Credit (which shall be a Business Day); (B) the amount thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary
thereof; (E) the documents to be presented by such beneficiary in case
of any drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; and
(G) such other matters as the US L/C Issuer may reasonably require. In
the case of a request for an amendment of any outstanding US Letter of
Credit, such US Letter of Credit Application shall specify in form and
detail satisfactory to the US L/C Issuer (A) the US Letter of Credit to
be amended; (B) the proposed date of amendment thereof (which shall be
a Business Day); (C) the nature of the proposed amendment; and (D) such
other matters as the US L/C Issuer may require. Additionally, the US
Borrower shall furnish to the US L/C Issuer and the Administrative
Agent such other documents and information pertaining to such requested
US Letter of Credit issuance or amendment, including any Issuer
Documents, as the US L/C Issuer or the Administrative Agent may
reasonably require.
(ii) Promptly after receipt of any US Letter of Credit
Application, the US L/C Issuer will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has
received a copy of such US Letter of Credit Application from the US
Borrower and, if not, the US L/C Issuer will provide the Administrative
Agent with a copy thereof. Unless the US L/C Issuer has received
written notice from any Lender, the Administrative Agent or any Loan
Party, at least one Business Day prior to the requested date of
issuance or amendment of the applicable US Letter of Credit, that one
or more applicable conditions contained in Article VI shall not then be
satisfied, then, subject to the terms and conditions hereof, the US L/C
Issuer shall, on the requested date, issue a US Letter of Credit for
the account of the US Borrower or enter into the applicable amendment,
as the case may be, in each case in accordance with the US L/C Issuer's
usual and customary business practices. Immediately upon the issuance
of each US Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the US L/C
Issuer a risk participation in such US Letter of Credit in an amount
equal to the product of such Lender's Pro Rata Share times the amount
of such US Letter of Credit.
(iii) Promptly after its delivery of any US Letter of
Credit or any amendment to a US Letter of Credit to an advising bank
with respect thereto or to the beneficiary thereof, the US L/C Issuer
will also deliver to the US Borrower and the Administrative Agent a
true and complete copy of such US Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any US Letter of
Credit of any notice of a drawing under such US Letter of Credit, the
US L/C Issuer shall notify the US Borrower and the Administrative Agent
thereof. Not later than 11:00 a.m. on the date of
DEVON CREDIT AGREEMENT
43
any payment by the US L/C Issuer under a US Letter of Credit (each such
date, an "US Honor Date"), the US Borrower shall reimburse the US L/C
Issuer through the Administrative Agent in an amount equal to the
amount of such drawing by means of a Borrowing of US Base Rate
Committed Loans or otherwise. If the US Borrower fails so to reimburse
the US L/C Issuer by such time, the Administrative Agent shall promptly
notify each Lender of the US Honor Date, the amount of the unreimbursed
drawing (the "US Unreimbursed Amount"), and the amount of such Lender's
Pro Rata Share thereof. In such event, the US Borrower shall be deemed
to have requested a US Committed Borrowing of US Base Rate Loans to be
disbursed on the US Honor Date in an amount equal to the US
Unreimbursed Amount, without regard to the minimum and multiples
specified in Section 2.02 for the principal amount of US Base Rate
Loans, but subject to the amount of the unutilized portion of the
Aggregate US Commitments and whether or not the conditions set forth in
Section 6.02 are satisfied. Any notice given by the US L/C Issuer or
the Administrative Agent pursuant to this Section 2.04(c)(i) may be
given by telephone if immediately confirmed in writing; provided that
the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(ii) Each Lender (including the Lender acting as US L/C
Issuer) shall upon any notice pursuant to Section 2.04(c)(i) make funds
available to the Administrative Agent for the account of the US L/C
Issuer at the Administrative Agent's Office in an amount equal to its
Pro Rata Share of the US Unreimbursed Amount not later than 1:00 p.m.
on the Business Day specified in such notice by the Administrative
Agent, whereupon, subject to the provisions of Section 2.04(c)(iii),
each Lender that so makes funds available shall be deemed to have made
a US Base Rate Committed Loan to the US Borrower in such amount. The
Administrative Agent shall remit the funds so received to the US L/C
Issuer.
(iii) With respect to any US Unreimbursed Amount that is
not fully refinanced by a US Committed Borrowing of US Base Rate Loans
for any reason, the US Borrower shall be deemed to have incurred from
the US L/C Issuer a US L/C Borrowing in the amount of the US
Unreimbursed Amount that is not so refinanced, which US L/C Borrowing
shall be due and payable on demand (together with interest) and shall
bear interest at a per annum rate equal to (i) for the first three (3)
Business Days after the date of such US L/C Borrowing, the US Base
Rate, and (ii) thereafter, the US Base Rate plus two percent (2%). In
such event, each Lender's payment to the Administrative Agent for the
account of the US L/C Issuer pursuant to Section 2.04(c)(ii) shall be
deemed payment in respect of its participation in such US L/C Borrowing
and shall constitute a US L/C Advance from such Lender in satisfaction
of its participation obligation under this Section 2.04.
(iv) Until each Lender funds its US Committed Loan or US
L/C Advance pursuant to this Section 2.04(c) to reimburse the US L/C
Issuer for any amount drawn under any US Letter of Credit, interest in
respect of such Lender's Pro Rata Share of such amount shall be solely
for the account of the US L/C Issuer.
DEVON CREDIT AGREEMENT
44
(v) Each Lender's obligation to make US Committed Loans
or US L/C Advances to reimburse the US L/C Issuer for amounts drawn
under US Letters of Credit, as contemplated by this Section 2.04(c),
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the US L/C
Issuer, the US Borrower or any other Person for any reason whatsoever;
(B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the
foregoing. No such making of a US L/C Advance shall relieve or
otherwise impair the obligation of the US Borrower to reimburse the US
L/C Issuer for the amount of any payment made by the US L/C Issuer
under any US Letter of Credit, together with interest as provided
herein.
(vi) If any Lender fails to make available to the
Administrative Agent for the account of the US L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing provisions
of this Section 2.04(c) by the time specified in Section 2.04(c)(ii),
the US L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the
date on which such payment is immediately available to the US L/C
Issuer at a rate per annum equal to the Federal Funds Rate from time to
time in effect. A certificate of the US L/C Issuer submitted to any
Lender (through the Administrative Agent) with respect to any amounts
owing under this clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the US L/C Issuer has made a
payment under any US Letter of Credit and has received from any Lender
such Lender's US L/C Advance in respect of such payment in accordance
with Section 2.04(c), if the Administrative Agent receives for the
account of the US L/C Issuer any payment in respect of the related US
Unreimbursed Amount or interest thereon (whether directly from the US
Borrower or otherwise, including proceeds of cash collateral applied
thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Pro Rata Share thereof (appropriately
adjusted, in the case of interest payments, to reflect the period of
time during which such Lender's US L/C Advance was outstanding) in the
same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent
for the account of the US L/C Issuer pursuant to Section 2.04(c)(i) is
required to be returned under any of the circumstances described in
Section 12.07 (including pursuant to any settlement entered into by the
US L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the US L/C Issuer its Pro Rata
Share thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the Federal Funds
Rate from time to time in effect.
DEVON CREDIT AGREEMENT
45
(e) Obligations Absolute. The obligation of the US Borrower to
reimburse the US L/C Issuer for each drawing under each US Letter of Credit and
to repay each US L/C Borrowing shall be absolute, unconditional and irrevocable,
and shall be paid strictly in accordance with the terms of this Agreement under
all circumstances, including the following:
(i) any lack of validity or enforceability of such US
Letter of Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, set-off,
defense or other right that the US Borrower or any Subsidiary may have
at any time against any beneficiary or any transferee of such US Letter
of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the US L/C Issuer or any other Person,
whether in connection with this Agreement, the transactions
contemplated hereby or by such US Letter of Credit or any agreement or
instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such US Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss or delay
in the transmission or otherwise of any document required in order to
make a drawing under such US Letter of Credit;
(iv) any payment by the US L/C Issuer under such US Letter
of Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such US Letter of Credit; or any
payment made by the US L/C Issuer under such US Letter of Credit to any
Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
such US Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or
a discharge of, the US Borrower or any Subsidiary.
The US Borrower shall promptly examine a copy of each US Letter of
Credit and each amendment thereto that is delivered to it and, in the event of
any claim of noncompliance with the US Borrower's instructions or other
irregularity, the US Borrower will promptly notify the US L/C Issuer. The US
Borrower shall be conclusively deemed to have waived any such claim against the
US L/C Issuer and its correspondents unless such notice is given as aforesaid.
(f) Role of US L/C Issuer. Each Lender and the US Borrower agree
that, in paying any drawing under a US Letter of Credit, the US L/C Issuer shall
not have any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the US Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the
US L/C Issuer, any Agent-Related Person nor any of the respective
correspondents, participants
DEVON CREDIT AGREEMENT
46
or assignees of the US L/C Issuer shall be liable to any Lender for (i) any
action taken or omitted in connection herewith at the request or with the
approval of the Lenders or the US Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any US Letter of Credit
or US Letter of Credit Application. The US Borrower hereby assumes all risks of
the acts or omissions of any beneficiary or transferee with respect to its use
of any US Letter of Credit; provided, however, that this assumption is not
intended to, and shall not, preclude the US Borrower's pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under
any other agreement. None of the US L/C Issuer, any Agent-Related Person, nor
any of the respective correspondents, participants or assignees of the US L/C
Issuer, shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.04(e); provided, however, that anything in
such clauses to the contrary notwithstanding, the US Borrower may have a claim
against the US L/C Issuer, and the US L/C Issuer may be liable to the US
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the US Borrower which the US
Borrower proves were caused by the US L/C Issuer's willful misconduct or gross
negligence or the US L/C Issuer's willful failure to pay under any US Letter of
Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a US Letter
of Credit. In furtherance and not in limitation of the foregoing, the US L/C
Issuer may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and the US L/C Issuer shall not be responsible for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a US Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent,
(i) if the US L/C Issuer has honored any full or partial drawing request under
any US Letter of Credit and such drawing has resulted in a US L/C Borrowing, or
(ii) if, as of the Letter of Credit Expiration Date, any US Letter of Credit for
any reason remains outstanding and partially or wholly undrawn, the US Borrower
shall immediately Cash Collateralize the then Outstanding Amount of all US L/C
Obligations (in an amount equal to such Outstanding Amount determined as of the
date of such US L/C Borrowing or the Letter of Credit Expiration Date, as the
case may be). Sections 3.06 and 10.02(c) set forth certain additional
requirements to deliver Cash Collateral hereunder. The US Borrower hereby grants
to the Administrative Agent, for the benefit of the US L/C Issuer and the
Lenders, a security interest in all such cash, deposit accounts and all balances
therein and all proceeds of the foregoing. Such Cash Collateral shall be
maintained in blocked deposit accounts at Bank of America. Pending application
thereof, such Cash Collateral shall be invested by the US L/C Issuer in such
investments as the applicable US L/C Issuer may choose in its sole discretion.
All interest on (and other proceeds of) such investments shall be reinvested or
applied to US L/C Obligations or other US Obligations which are due and payable.
(h) Applicability of ISP98 and UCP. Unless otherwise expressly
agreed by the US L/C Issuer and the US Borrower when a US Letter of Credit is
issued (including any such agreement applicable to an Existing US Letter of
Credit), (i) the rules of the ISP shall apply to each standby US Letter of
Credit, and (ii) the rules of the Uniform Customs and Practice for
DEVON CREDIT AGREEMENT
47
Documentary Credits, as most recently published by the International Chamber of
Commerce at the time of issuance shall apply to each commercial US Letter of
Credit.
(i) US Letter of Credit Fees. The US Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with its Pro
Rata Share a US Letter of Credit fee (the "US Letter of Credit Fee") for each US
Letter of Credit equal to the Applicable Rate times the daily maximum amount
available to be drawn under such US Letter of Credit. US Letter of Credit Fees
shall be (i) computed on a quarterly basis in arrears and (ii) due and payable
on the first Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of
such US Letter of Credit, on the Letter of Credit Expiration Date and thereafter
on demand. If there is any change in the Applicable Rate during any quarter, the
daily maximum amount of each standby US Letter of Credit shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to
US L/C Issuer. The US Borrower shall pay directly to the US L/C Issuer for its
own account a fronting fee with respect to each US Letter of Credit in the
amount specified in the applicable Fee Letter, payable on the actual daily
maximum amount available to be drawn under such US Letter of Credit. Such
fronting fee shall be computed on a quarterly basis in arrears. Such fronting
fee shall be due and payable on the first Business Day after the end of each
March, June, September and December, commencing with the first such date to
occur after the issuance of such US Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand. In addition, the US Borrower shall pay
directly to the US L/C Issuer for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and
charges, of the US L/C Issuer relating to letters of credit as agreed to by the
US Borrower and the applicable US L/C Issuer. Such customary fees and standard
costs and charges are due and payable on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict
between the terms hereof and the terms of any Issuer Document, the terms hereof
shall control.
(l) Designation of Subsidiaries as Account Parties.
Notwithstanding anything to the contrary set forth in this Agreement, including
without limitation Section 2.04(a), a US Letter of Credit issued hereunder
shall, upon the request of the US Borrower, be issued for the account of any
Subsidiary of the US Borrower, provided that notwithstanding such request, the
US Borrower shall be the actual account party for all purposes of this Agreement
for such US Letter of Credit, and such request shall not affect the US
Borrower's reimbursement obligations hereunder with respect to such US Letter of
Credit.
2.05 US SWING LINE LOANS.
(a) The US Swing Line. Subject to the terms and conditions set
forth herein, the US Swing Line Lender agrees to make loans (each such loan, a
"US Swing Line Loan") to the US Borrower from time to time on any Business Day
during the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the US Swing Line Sublimit,
DEVON CREDIT AGREEMENT
48
notwithstanding the fact that such US Swing Line Loans, when aggregated with the
Pro Rata Share of the Outstanding Amount of US Committed Loans and US L/C
Obligations of the Lender acting as US Swing Line Lender, may exceed the amount
of such Lender's US Commitment; provided, however, that after giving effect to
any US Swing Line Loan, (i) the Total US Outstandings shall not exceed the
Aggregate US Commitments, and (ii) the aggregate Outstanding Amount of the US
Committed Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all US L/C Obligations, plus such Lender's Pro Rata Share
of the Outstanding Amount of all US Swing Line Loans shall not exceed such
Lender's US Commitment, and provided, further, that the US Borrower shall not
use the proceeds of any US Swing Line Loan to refinance any outstanding US Swing
Line Loan. Within the foregoing limits, and subject to the other terms and
conditions hereof, the US Borrower may borrow under this Section 2.05, prepay
under Section 2.06, and reborrow under this Section 2.05. Each US Swing Line
Loan shall be a US Base Rate Loan. Immediately upon the making of a US Swing
Line Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the US Swing Line Lender a risk
participation in such US Swing Line Loan in an amount equal to the product of
such Lender's Pro Rata Share times the amount of such US Swing Line Loan.
(b) US Borrowing Procedures. Each US Swing Line Borrowing shall be
made upon the US Borrower's irrevocable notice to the US Swing Line Lender and
the Administrative Agent, which may be given by telephone. Each such notice must
be received by the US Swing Line Lender and the Administrative Agent not later
than 3:00 p.m. on the requested borrowing date, and shall specify (i) the amount
to be borrowed, which shall be a minimum of US $1,000,000, and (ii) the
requested borrowing date, which shall be a Business Day. Each such telephonic
notice must be confirmed promptly by delivery to the US Swing Line Lender and
the Administrative Agent of a written US Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the US Borrower. Promptly after
receipt by the US Swing Line Lender of any telephonic US Swing Line Loan Notice,
the US Swing Line Lender will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has also received such US
Swing Line Loan Notice and, if not, the US Swing Line Lender will notify the
Administrative Agent (by telephone or in writing) of the contents thereof.
Unless the US Swing Line Lender has received notice (by telephone or in writing)
from the Administrative Agent (including at the request of any Lender) prior to
4:00 p.m. on the date of the proposed US Swing Line Borrowing (A) directing the
US Swing Line Lender not to make such US Swing Line Loan as a result of the
limitations set forth in the proviso to the first sentence of Section 2.05(a),
or (B) that one or more of the applicable conditions specified in Article VI is
not then satisfied, then, subject to the terms and conditions hereof, the US
Swing Line Lender will, not later than 5:00 p.m. on the borrowing date specified
in such US Swing Line Loan Notice, make the amount of its US Swing Line Loan
available to the US Borrower at its office by crediting the account of the US
Borrower on the books of the US Swing Line Lender in immediately available
funds.
(c) Refinancing of US Swing Line Loans.
(i) The US Swing Line Lender at any time in its sole and
absolute discretion may request, on behalf of the US Borrower (which
hereby irrevocably authorizes the US
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49
Swing Line Lender to so request on its behalf), that each Lender make a
US Base Rate Committed Loan in an amount equal to such Lender's Pro
Rata Share of the amount of US Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be deemed
to be a US Committed Loan Notice for purposes hereof) and in accordance
with the requirements of Section 2.02, without regard to the minimum
and multiples specified therein for the principal amount of US Base
Rate Loans, but subject to the unutilized portion of the Aggregate US
Commitments and the conditions set forth in Section 6.02. The US Swing
Line Lender shall furnish the US Borrower with a copy of the applicable
US Committed Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Lender shall make an amount equal to its Pro
Rata Share of the amount specified in such US Committed Loan Notice
available to the Administrative Agent in immediately available funds
for the account of the US Swing Line Lender at the Administrative
Agent's Office not later than 1:00 p.m. on the day specified in such US
Committed Loan Notice, whereupon, subject to Section 2.05(c)(ii), each
Lender that so makes funds available shall be deemed to have made a US
Base Rate Committed Loan to the US Borrower in such amount. The
Administrative Agent shall remit the funds so received to the US Swing
Line Lender.
(ii) If for any reason any US Swing Line Loan cannot be
refinanced by such a US Committed Borrowing in accordance with Section
2.05(c)(i), the request for US Base Rate Committed Loans submitted by
the US Swing Line Lender as set forth herein shall be deemed to be a
request by the US Swing Line Lender that each of the Lenders fund its
risk participation in the relevant US Swing Line Loan and each Lender's
payment to the Administrative Agent for the account of the US Swing
Line Lender pursuant to Section 2.05(c)(i) shall be deemed payment in
respect of such participation.
(iii) If any Lender fails to make available to the
Administrative Agent for the account of the US Swing Line Lender any
amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.05(c) by the time specified in Section
2.05(c)(i), the US Swing Line Lender shall be entitled to recover from
such Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment
is required to the date on which such payment is immediately available
to the US Swing Line Lender at a rate per annum equal to the Federal
Funds Rate from time to time in effect. A certificate of the US Swing
Line Lender submitted to any Lender (through the Administrative Agent)
with respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.
(iv) Each Lender's obligation to make US Committed Loans
or to purchase and fund risk participations in US Swing Line Loans
pursuant to this Section 2.05(c) shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any
set-off, counterclaim, recoupment, defense or other right which such
Lender may have against the US Swing Line Lender, the US Borrower or
any other Person for any reason whatsoever, (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided,
however, that each Lender's obligation to make US Committed Loans
pursuant to this Section 2.05(c) is subject to the conditions set forth
in Section 6.02. No such
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50
funding of risk participations shall relieve or otherwise impair the
obligation of the US Borrower to repay US Swing Line Loans, together
with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded
a risk participation in a US Swing Line Loan, if the US Swing Line
Lender receives any payment on account of such US Swing Line Loan, the
US Swing Line Lender will distribute to such Lender its Pro Rata Share
of such payment (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender's risk
participation was funded) in the same funds as those received by the US
Swing Line Lender.
(ii) If any payment received by the US Swing Line Lender
in respect of principal or interest on any US Swing Line Loan is
required to be returned by the US Swing Line Lender under any of the
circumstances described in Section 12.07 (including pursuant to any
settlement entered into by the US Swing Line Lender in its discretion),
each Lender shall pay to the US Swing Line Lender its Pro Rata Share
thereof on demand of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is returned, at a
rate per annum equal to the Federal Funds Rate. The Administrative
Agent will make such demand upon the request of the US Swing Line
Lender.
(e) Interest for Account of US Swing Line Lender. The US Swing
Line Lender shall be responsible for invoicing the US Borrower for interest on
the US Swing Line Loans. Until each Lender funds its US Base Rate Committed Loan
or risk participation pursuant to this Section 2.05 to refinance such Lender's
Pro Rata Share of any US Swing Line Loan, interest in respect of such Pro Rata
Share shall be solely for the account of the US Swing Line Lender.
(f) Payments Directly to US Swing Line Lender. The US Borrower
shall make all payments of principal and interest in respect of the US Swing
Line Loans directly to the US Swing Line Lender.
2.06 PREPAYMENTS.
(a) The US Borrower may, upon notice to the Administrative Agent,
at any time or from time to time voluntarily prepay US Committed Loans in whole
or in part without premium or penalty; provided that (i) such notice must be
received by the Administrative Agent not later than 11:00 a.m. (A) two Business
Days prior to any date of prepayment of US Eurodollar Rate Committed Loans and
(B) on the date of prepayment of US Base Rate Committed Loans; (ii) any
prepayment of US Eurodollar Rate Committed Loans shall be in a principal amount
of US $5,000,000 or a whole multiple of US $1,000,000 in excess thereof; and
(iii) any prepayment of US Base Rate Committed Loans shall be in a principal
amount of US $1,000,000 or a whole multiple of US $100,000 in excess thereof or,
in each case, if less, the entire principal amount thereof then outstanding.
Each such notice shall specify the date and amount of such prepayment and the
Type(s) of US Committed Loans to be prepaid. The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender's Pro
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51
Rata Share of such prepayment. If such notice is given by the US Borrower, the
US Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein. Any prepayment of
a US Dollar Eurodollar Rate Loan shall be accompanied by all accrued interest
thereon, together with any additional amounts required pursuant to Section 5.05.
Each such prepayment shall be applied to the US Committed Loans of the Lenders
in accordance with their respective Pro Rata Shares.
(b) No US Bid Loan may be prepaid without the prior consent of the
applicable US Bid Loan Lender.
(c) The US Borrower may, upon notice to the US Swing Line Lender
(with a copy to the Administrative Agent), at any time or from time to time,
voluntarily prepay US Swing Line Loans in whole or in part without premium or
penalty; provided that (i) such notice must be received by the US Swing Line
Lender and the Administrative Agent not later than 1:00 p.m. on the date of the
prepayment, and (ii) any such prepayment shall be in a minimum principal amount
of US $1,000,000. Each such notice shall specify the date and amount of such
prepayment. If such notice is given by the US Borrower, the US Borrower shall
make such prepayment and the payment amount specified in such notice shall be
due and payable on the date specified therein.
(d) If for any reason the Total US Outstandings at any time exceed
the Aggregate US Commitments then in effect, the US Borrower shall immediately
prepay Loans and/or Cash Collateralize the US L/C Obligations in an aggregate
amount equal to such excess; provided, however, that the US Borrower shall not
be required to Cash Collateralize the US L/C Obligations pursuant to this
Section 2.06(d) unless after the prepayment in full of the US Committed Loans
and US Swing Line Loans the Total US Outstandings exceed the Aggregate US
Commitments then in effect.
2.07 REPAYMENT OF US LOANS.
(a) The US Borrower shall repay to each Lender on the Maturity
Date the aggregate principal amount of its US Committed Loans and all other US
Obligations owing to such Lender outstanding on such date.
(b) The US Borrower shall repay each US Bid Loan on the last day
of the Interest Period in respect thereof.
ARTICLE III.
CANADIAN SUBFACILITY
3.01 CANADIAN COMMITTED LOANS. Subject to the terms and conditions
set forth herein, each Canadian Lender severally agrees to make loans (each such
loan, a "Canadian Committed Loan") to each Canadian Borrower from time to time,
on any Business Day during the Availability Period, in an aggregate amount not
to exceed at any time outstanding the amount of the Canadian Commitment of such
Canadian Lender; provided, however, that after giving effect to any Canadian
Committed Borrowing, (i) the Total Canadian Outstandings (calculated,
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52
as necessary, at the US Dollar Equivalent thereof) shall not exceed the
Aggregate Canadian Commitments, and (ii) the aggregate Outstanding Amount of the
Canadian Committed Loans of any Canadian Lender, plus such Canadian Lender's Pro
Rata Share of the Outstanding Amount of all Canadian L/C Obligations, plus such
Canadian Lender's Pro Rata Share of the Outstanding Amount of all Canadian Swing
Line Loans plus such Canadian Lender's Bankers' Acceptances (in each case,
calculated, as necessary, at the US Dollar Equivalent thereof) shall not exceed
the Canadian Commitment of such Canadian Lender. Within the limits of the
Canadian Commitment of each Canadian Lender, and subject to the other terms and
conditions hereof, each Canadian Borrower may borrow under this Section 3.01,
prepay under Section 3.06, and reborrow under this Section 3.01. Canadian
Committed Loans may be Canadian Prime Rate Loans, Canadian Base Rate Committed
Loans, Canadian Dollar Eurodollar Rate Loans or Canadian US Eurodollar Rate
Committed Loans, as further provided herein.
3.02 CANADIAN BORROWINGS, CONVERSIONS AND CONTINUATIONS OF CANADIAN
COMMITTED LOANS.
(a) Each Canadian Committed Borrowing, each conversion of Canadian
Committed Loans from one Type to another, and each continuation of Canadian
Eurodollar Rate Committed Loans or Canadian US Eurodollar Rate Committed Loans
shall be made upon the applicable Canadian Borrower's irrevocable notice to the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Administrative Agent not later than 11:00 a.m. (i) three
Business Days prior to the requested date of any Canadian Borrowing of,
conversion to or continuation of Canadian Eurodollar Rate Committed Loans or
Canadian US Eurodollar Rate Committed Loans or of any conversion of Canadian
Eurodollar Rate Committed Loans or Canadian US Eurodollar Rate Committed Loans
to Canadian Prime Rate Committed Loans or Canadian Base Rate Committed Loans,
and (ii) on the requested date of any Canadian Borrowing of Canadian Base Rate
Committed Loans or Canadian Prime Rate Committed Loans. Each telephonic notice
by the Canadian Borrower pursuant to this Section 3.02(a) must be confirmed
promptly by delivery to the Administrative Agent of a written Canadian Committed
Borrowing Notice, appropriately completed and signed by a Responsible Officer of
the applicable Canadian Borrower. Each Canadian Borrowing of, conversion to or
continuation of Canadian Eurodollar Rate Committed Loans or Canadian US
Eurodollar Rate Committed Loans shall be in a principal amount of $5,000,000 in
the Applicable Currency or a whole multiple of $1,000,000 of the Applicable
Currency in excess thereof. Except as provided in Sections 3.04(c) and 3.05(c),
each Canadian Borrowing of or conversion to Canadian Base Rate Committed Loans
or Canadian Prime Rate Committed Loans shall be in a principal amount of
$1,000,000 in the Applicable Currency or a whole multiple of $100,000 in the
Applicable Currency in excess thereof. Each Canadian Committed Borrowing Notice
(whether telephonic or written) shall specify (i) whether the applicable
Canadian Borrower is requesting a Canadian Committed Borrowing, a conversion of
Canadian Committed Loans from one Type to another, or a continuation of Canadian
Eurodollar Rate Committed Loans or Canadian US Eurodollar Rate Committed Loans,
(ii) the requested date of the Canadian Borrowing, conversion or continuation,
as the case may be (which shall be a Business Day), (iii) the principal amount
of Canadian Committed Loans to be borrowed, converted or continued, (iv) the
Type of Canadian Committed Loans to be borrowed or to which existing Canadian
Committed Loans are to be converted, and (v) if applicable, the duration of the
Interest Period with respect thereto. If the
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53
Canadian Borrower fails to specify a Type of Canadian Committed Loan in a
Canadian Committed Borrowing Notice or if the applicable Canadian Borrower fails
to give a timely notice requesting a conversion or continuation, then the
applicable Canadian Loans denominated in Canadian Dollars shall be made as, or
converted to, Canadian Prime Rate Committed Loans and the applicable Canadian
Loans denominated in US Dollars shall be made as, or converted to, Canadian Base
Rate Committed Loans. Any such automatic conversion shall be effective as of the
last day of the Interest Period then in effect with respect to the applicable
Canadian Eurodollar Rate Committed Loans or the applicable Canadian US
Eurodollar Rate Committed Loans. If a Canadian Borrower requests a Canadian
Committed Borrowing of, conversion to, or continuation of Canadian Eurodollar
Rate Committed Loans in any such Canadian Committed Borrowing Notice, but fails
to specify an Interest Period, it will be deemed to have specified an Interest
Period of one month.
(b) Following receipt of a Canadian Committed Borrowing Notice,
the Administrative Agent shall promptly notify each Canadian Lender of the
amount of its Pro Rata Share of the applicable Canadian Committed Loans, and if
no timely notice of a conversion or continuation is provided by the applicable
Canadian Borrower, the Administrative Agent shall notify each Canadian Lender of
the details of any automatic conversion to Canadian Prime Rate Committed Loans
or Canadian Base Rate Committed Loans described in the preceding subsection. In
the case of a Canadian Committed Borrowing, each Canadian Lender shall make the
amount of its Canadian Committed Loan available to the Administrative Agent in
immediately available funds at the Administrative Agent's Office not later than
1:00 p.m. on the Business Day specified in the applicable Canadian Committed
Borrowing Notice. Upon satisfaction of the applicable conditions set forth in
Section 6.02 (and, if such Canadian Borrowing is the initial Canadian Credit
Extension, Section 6.01), the Administrative Agent shall make all funds so
received available to the applicable Canadian Borrower in like funds as received
by the Administrative Agent either by (i) crediting the account of the
applicable Canadian Borrower on the books of Bank of America, acting through its
Canadian Branch with the amount of such funds or (ii) wire transfer of such
funds, in each case in accordance with instructions provided to (and reasonably
acceptable to) the Administrative Agent by the applicable Canadian Borrower;
provided, however, that if, on the date the Canadian Committed Borrowing Notice
with respect to such Canadian Borrowing is given by the applicable Canadian
Borrower, there are Canadian L/C Borrowings outstanding, then the proceeds of
such Canadian Borrowing, first, shall be applied, to the payment in full of any
such Canadian L/C Borrowings, and second, shall be made available to the
applicable Canadian Borrower as provided above.
(c) Except as otherwise provided herein, a Canadian Eurodollar
Rate Committed Loan or a Canadian US Eurodollar Rate Committed Loan may be
continued or converted only on the last day of an Interest Period for such
Committed Loan. During the existence of a Default, no Loans may be requested as,
converted to or continued as Canadian Eurodollar Rate Committed Loans or a
Canadian US Eurodollar Rate Committed Loan without the consent of the Canadian
Required Lenders.
(d) The Administrative Agent shall promptly notify the Canadian
Borrowers and the Canadian Lenders of the interest rate applicable to any
Interest Period for a Canadian Eurodollar Rate Committed Loan or a Canadian US
Eurodollar Rate Committed Loan upon determination
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54
of such interest rate. The determination of the Canadian Dollar Eurodollar Rate
or US Dollar Eurodollar Rate by the Administrative Agent shall be conclusive in
the absence of manifest error. At any time that Canadian Prime Rate Loans or
Canadian Base Rate Committed Loans are outstanding, the Administrative Agent
shall notify the Canadian Borrowers and the Canadian Lenders of any change in
the prime rate or base rate used in determining the Canadian Prime Rate Loans or
Canadian Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Canadian Committed Borrowings, all
conversions of Canadian Committed Loans from one Type to another, and all
continuations of Canadian Committed Loans as the same Type, there shall not be
more than ten Interest Periods in effect with respect to Canadian Committed
Loans for each Canadian Borrower.
(f) Except as otherwise provided herein, a Canadian Bankers'
Acceptance may be rolled over or converted only on its maturity date. During the
existence of a Default, no Canadian Borrowings may be requested as or converted
to, and no Canadian Bankers' Acceptances may be rolled over as new Canadian
Bankers' Acceptances without the consent of Canadian Required Lenders.
3.03 CANADIAN BID LOANS.
(a) General. Subject to the terms and conditions set forth herein,
each Canadian Lender agrees that each Canadian Borrower may from time to time
request the Canadian Lenders to submit offers to make loans (each such loan, a
"Canadian Bid Loan") for requested maturities of thirty (30) days or more to the
Canadian Borrowers prior to the Maturity Date pursuant to this Section 3.03;
provided, however, that after giving effect to any Canadian Bid Borrowing, the
Total Canadian Outstandings shall not exceed the Aggregate Canadian Commitments.
There shall not be more than five different Interest Periods in effect with
respect to Canadian Bid Loans at any time.
(b) Requesting Canadian Competitive Bids. A Canadian Borrower may
request the submission of Canadian Competitive Bids by delivering a Canadian Bid
Request to the Administrative Agent not later than 12:00 noon (i) one Business
Day prior to the requested date of any Canadian Bid Borrowing that is to consist
of Canadian Absolute Rate Loans, or (ii) four Business Days prior to the
requested date of any Canadian Bid Borrowing that is to consist of Canadian
Eurodollar Margin Bid Loans. Each Canadian Bid Request shall specify (i) the
requested date of the Canadian Bid Borrowing (which shall be a Business Day),
(ii) the aggregate principal amount of Canadian Bid Loans requested (which must
be C$5,000,000 or a whole multiple of C$1,000,000 in excess thereof), (iii) the
Type of Canadian Bid Loans requested, and (iv) the duration of the Interest
Period with respect thereto, and shall be signed by a Responsible Officer of the
Canadian Borrower. No Canadian Bid Request shall contain a request for (i) more
than one Type of Canadian Bid Loan or (ii) Canadian Bid Loans having more than
three different Interest Periods. Unless the Administrative Agent otherwise
agrees in its sole and absolute discretion, the Canadian Borrowers may not
submit a Canadian Bid Request if it has submitted another Canadian Bid Request
within the prior five Business Days.
(c) Submitting Canadian Competitive Bids.
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55
(i) The Administrative Agent shall promptly notify each Canadian
Lender of each Canadian Bid Request received by it from a Canadian Borrower and
the contents of such Canadian Bid Request.
(ii) Each Canadian Lender may (but shall have no obligation to)
submit a Canadian Competitive Bid containing an offer to make one or more
Canadian Bid Loans in response to such Canadian Bid Request. Such Canadian
Competitive Bid must be delivered to the Administrative Agent not later than
10:30 a.m. (A) on the requested date of any Canadian Bid Borrowing that is to
consist of Canadian Absolute Rate Loans, and (B) three Business Days prior to
the requested date of any Canadian Bid Borrowing that is to consist of Canadian
Eurodollar Margin Bid Loans; provided, however, that any Canadian Competitive
Bid submitted by Bank of America in its capacity as a Canadian Lender in
response to any Canadian Bid Request must be submitted to the Administrative
Agent not later than 10:15 a.m. on the date on which Canadian Competitive Bids
are required to be delivered by the other Canadian Lenders in response to such
Canadian Bid Request. Each Canadian Competitive Bid shall specify (A) the
proposed date of the Canadian Bid Borrowing; (B) the principal amount of each
Canadian Bid Loan for which such Canadian Competitive Bid is being made, which
principal amount (x) may be equal to, greater than or less than the Canadian
Commitment of the bidding Canadian Lender, (y) must be C$5,000,000 or a whole
multiple of C$1,000,000 in excess thereof, and (z) may not exceed the principal
amount of Canadian Bid Loans for which Canadian Competitive Bids were requested;
(C) if the proposed Canadian Bid Borrowing is to consist of Canadian Absolute
Rate Loans, the Absolute Rate offered for each such Canadian Bid Loan and the
Interest Period applicable thereto; (D) if the proposed Canadian Bid Borrowing
is to consist of Canadian Eurodollar Margin Bid Loans, the Canadian Eurodollar
Bid Margin with respect to each such Canadian Eurodollar Margin Bid Loan and the
Interest Period applicable thereto; and (E) the identity of the bidding Canadian
Lender.
(iii) Any Canadian Competitive Bid shall be disregarded if it (A) is
received after the applicable time specified in clause (ii) above, (B) is not
substantially in the form of a Canadian Competitive Bid as specified herein, (C)
contains qualifying, conditional or similar language, (D) proposes terms other
than or in addition to those set forth in the applicable Canadian Bid Request,
or (E) is otherwise not responsive to such Canadian Bid Request. Any Canadian
Lender may correct a Canadian Competitive Bid containing a manifest error by
submitting a corrected Canadian Competitive Bid (identified as such) not later
than the applicable time required for submission of Canadian Competitive Bids.
Any such submission of a corrected Canadian Competitive Bid shall constitute a
revocation of the Canadian Competitive Bid that contained the manifest error.
The Administrative Agent may, but shall not be required to, notify any Canadian
Lender of any manifest error it detects in such Canadian Lender's Canadian
Competitive Bid.
(iv) Subject only to the provisions of Sections 5.02, 5.03 and 6.02
and clause (iii) above, each Canadian Competitive Bid shall be irrevocable.
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56
(d) Notice to Canadian Borrowers of Canadian Competitive Bids. Not
later than 11:00 a.m. (i) on the requested date of any Canadian Bid Borrowing
that is to consist of Canadian Absolute Rate Loans, or (ii) three Business Days
prior to the requested date of any Canadian Bid Borrowing that is to consist of
Canadian Eurodollar Margin Bid Loans, the Administrative Agent shall notify the
applicable Canadian Borrower of the identity of each Canadian Lender that has
submitted a Canadian Competitive Bid that complies with Section 3.03(c) and of
the terms of the offers contained in each such Canadian Competitive Bid.
(e) Acceptance of Canadian Competitive Bids. Not later than 11:30
a.m. (i) on the requested date of any Canadian Bid Borrowing that is to consist
of Canadian Absolute Rate Loans, and (ii) three Business Days prior to the
requested date of any Canadian Bid Borrowing that is to consist of Canadian
Eurodollar Margin Bid Loans, the applicable Canadian Borrower shall notify the
Administrative Agent of its acceptance or rejection of the offers notified to it
pursuant to Section 3.03(d). The applicable Canadian Borrower shall be under no
obligation to accept any Canadian Competitive Bid and may choose to reject all
Canadian Competitive Bids. In the case of acceptance, such notice shall specify
the aggregate principal amount of Canadian Competitive Bids for each Interest
Period that is accepted. The applicable Canadian Borrower may accept any
Canadian Competitive Bid in whole or in part; provided that:
(i) the aggregate principal amount of each Canadian Bid
Borrowing may not exceed the applicable amount set forth in the related
Canadian Bid Request;
(ii) the principal amount of each Canadian Bid Loan must
be C$5,000,000 or a whole multiple of C$1,000,000 in excess thereof;
(iii) the acceptance of offers may be made only on the
basis of ascending Absolute Rates or Canadian Eurodollar Bid Margins
within each Interest Period; and
(iv) the Canadian Borrower may not accept any offer that
is described in Section 3.03(c)(iii) or that otherwise fails to comply
with the requirements hereof.
(f) Procedure for Identical Canadian Bids. If two or more Canadian
Lenders have submitted Canadian Competitive Bids at the same Absolute Rate or
Canadian Eurodollar Bid Margin, as the case may be, for the same Interest
Period, and the result of accepting all of such Canadian Competitive Bids in
whole (together with any other Canadian Competitive Bids at lower Absolute Rates
or Canadian Eurodollar Bid Margins, as the case may be, accepted for such
Interest Period in conformity with the requirements of Section 3.03(e)(iii))
would be to cause the aggregate outstanding principal amount of the applicable
Canadian Bid Borrowing to exceed the amount specified therefor in the related
Canadian Bid Request, then, unless otherwise agreed by the Canadian Borrower,
the Administrative Agent and such Canadian Lenders, such Canadian Competitive
Bids shall be accepted as nearly as possible in proportion to the amount offered
by each such Canadian Lender in respect of such Interest Period, with such
accepted amounts being rounded to the nearest whole multiple of C$1,000,000.
(g) Notice to Canadian Lenders of Acceptance or Rejection of
Canadian Bids. The Administrative Agent shall promptly notify each Canadian
Lender having submitted a Canadian
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57
Competitive Bid whether or not its offer has been accepted and, if its offer has
been accepted, of the amount of the Canadian Bid Loan or Canadian Bid Loans to
be made by it on the date of the applicable Canadian Bid Borrowing. Any Canadian
Competitive Bid or portion thereof that is not accepted by the applicable
Canadian Borrower by the applicable time specified in Section 3.03(e) shall be
deemed rejected.
(h) Notice of Canadian Dollar Eurodollar Rate. If any Canadian Bid
Borrowing is to consist of Eurodollar Margin Loans, the Administrative Agent
shall determine the Canadian Dollar Eurodollar Rate for the relevant Interest
Period, and promptly after making such determination, shall notify the Canadian
Borrower and the Canadian Lenders that will be participating in such Canadian
Bid Borrowing of such Canadian Dollar Eurodollar Rate.
(i) Funding of Canadian Bid Loans. Each Canadian Lender that has
received notice pursuant to Section 3.03(g) that all or a portion of its
Canadian Competitive Bid has been accepted by the applicable Canadian Borrower
shall make the amount of its Canadian Bid Loan(s) available to the
Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 1:00 p.m. on the date of the requested Canadian
Bid Borrowing. Upon satisfaction of the applicable conditions set forth in
Section 6.02, the Administrative Agent shall make all funds so received
available to the applicable Canadian Borrower in like funds as received by the
Administrative Agent.
(j) Notice of Range of Canadian Bids. After each Canadian
Competitive Bid auction pursuant to this Section 3.03, the Administrative Agent
shall notify each Canadian Lender that submitted a Canadian Competitive Bid in
such auction of the ranges of bids submitted (without the bidder's name) and
accepted for each Canadian Bid Loan and the aggregate amount of each Canadian
Bid Borrowing.
3.04 CANADIAN LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein,
(A) the Canadian L/C Issuer agrees, in reliance upon the agreements of
the other Canadian Lenders set forth in this Section 3.04 (1) from time
to time on any Business Day during the period from the Closing Date
until the Letter of Credit Expiration Date, to issue Canadian Letters
of Credit for the account of the applicable Canadian Borrower, and to
amend or renew Canadian Letters of Credit previously issued by it, in
accordance with subsection (b) below, and (2) to honor drawings under
the Canadian Letters of Credit; and (B) the Canadian Lenders severally
agree to participate in Canadian Letters of Credit issued for the
account of a Canadian Borrower and any drawings thereunder; provided
that after giving effect to any Canadian L/C Credit Extension with
respect to any Letter of Credit, (x) the Total Canadian Outstandings
shall not exceed the Aggregate Canadian Commitments, (y) the aggregate
Outstanding Amount of the Canadian Committed Borrowings of any Canadian
Lender, plus such Canadian Lender's Pro Rata Share of the Outstanding
Amount of all Canadian L/C Obligations, plus such Canadian Lender's Pro
Rata Share of the Outstanding Amount of all Canadian Swing Line Loans
shall not
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58
exceed such Canadian Lender's Canadian Commitment, and (z) the
Outstanding Amount of the Canadian L/C Obligations shall not exceed the
Canadian Letter of Credit Sublimit. Each request by a Canadian Borrower
for the issuance or amendment of a Letter of Credit shall be deemed to
be a representation by such Canadian Borrower that the Canadian L/C
Credit Extension so requested complies with the conditions set forth in
the proviso to the preceding sentence. Within the foregoing limits, and
subject to the terms and conditions hereof, each Canadian Borrower's
ability to obtain Canadian Letters of Credit shall be fully revolving,
and accordingly each Canadian Borrower may, during the foregoing
period, obtain Canadian Letters of Credit to replace Canadian Letters
of Credit that have expired or that have been drawn upon and
reimbursed. All Existing Canadian Letters of Credit shall be deemed to
have been issued pursuant hereto, and from and after the Closing Date
shall be subject to and governed by the terms and conditions hereof.
(ii) The Canadian L/C Issuer shall not issue any Letter of
Credit if the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Canadian Lenders have approved such expiry date.
(iii) The Canadian L/C Issuer shall not be under any
obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the Canadian L/C Issuer from
issuing such Letter of Credit, or any Law applicable to the
Canadian L/C Issuer or any request or directive (whether or
not having the force of law) from any Governmental Authority
with jurisdiction over the Canadian L/C Issuer shall prohibit,
or request that the Canadian L/C Issuer refrain from, the
issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the Canadian L/C
Issuer with respect to such Letter of Credit any restriction,
reserve or capital requirement (for which the Canadian L/C
Issuer is not otherwise compensated hereunder) not in effect
on the Closing Date, or shall impose upon the Canadian L/C
Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the Canadian L/C
Issuer in good xxxxx xxxxx material to it, unless the
applicable Canadian Borrower confirms that it will pay the
foregoing;
(B) the issuance of such Letter of Credit would
violate any Laws;
(C) except as otherwise agreed by the
Administrative Agent and the Canadian L/C Issuer, such Letter
of Credit is in an initial face amount less than C$10,000 or
US $10,000, as the case may be;
(D) such Letter of Credit is to be denominated
in a currency other than Canadian Dollars or US Dollars; or
(E) the Canadian L/C Issuer is Royal Bank of
Canada and the Canadian L/C Obligations relating to Letters of
Credit issued by Royal Bank of
DEVON CREDIT AGREEMENT
59
Canada as Canadian L/C Issuer hereunder exceed US $125,000,000
unless otherwise agreed to by Royal Bank of Canada.
(iv) The Canadian L/C Issuer shall not amend any Letter of
Credit if the Canadian L/C Issuer would not be permitted at such time
to issue such Letter of Credit in its amended form under the terms
hereof.
(v) The Canadian L/C Issuer shall be under no obligation
to amend any Letter of Credit if (A) the Canadian L/C Issuer would have
no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such
Letter of Credit does not accept the proposed amendment to such Letter
of Credit.
(b) Procedures for Issuance and Amendment of Canadian Letters of
Credit.
(i) Each Canadian Letter of Credit shall be issued or
amended, as the case may be, upon the request of the applicable
Canadian Borrower delivered to the Canadian L/C Issuer (with a copy to
the Administrative Agent) in the form of a Canadian Letter of Credit
Application, appropriately completed and signed by a Responsible
Officer of the applicable Canadian Borrower. Such Canadian Letter of
Credit Application must be received by the Canadian L/C Issuer and the
Administrative Agent not later than 11:00 a.m. at least three Business
Days (or such later date and time as the Administrative Agent and the
Canadian L/C Issuer may agree in a particular instance in their sole
discretion) prior to the proposed issuance date or date of amendment,
as the case may be. In the case of a request for an initial issuance of
a Canadian Letter of Credit, such Canadian Letter of Credit Application
shall specify in form and detail satisfactory to the Canadian L/C
Issuer: (A) the proposed issuance date of the requested Canadian Letter
of Credit (which shall be a Business Day); (B) the amount thereof; (C)
the expiry date thereof; (D) the name and address of the beneficiary
thereof; (E) the documents to be presented by such beneficiary in case
of any drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; and
(G) such other matters as the Canadian L/C Issuer may reasonably
require. In the case of a request for an amendment of any outstanding
Canadian Letter of Credit, such Canadian Letter of Credit Application
shall specify in form and detail satisfactory to the Canadian L/C
Issuer (A) the Canadian Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C)
the nature of the proposed amendment; and (D) such other matters as the
Canadian L/C Issuer may require. Additionally, the applicable Canadian
Borrower shall furnish to the Canadian L/C Issuer and the
Administrative Agent such other documents and information pertaining to
such requested Letter of Credit issuance or amendment, including any
Issuer Documents, as the Canadian L/C Issuer or the Administrative
Agent may reasonably require.
(ii) Promptly after receipt of any Canadian Letter of
Credit Application, the Canadian L/C Issuer will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Canadian Letter of
Credit Application from the applicable Canadian Borrower and, if not,
the Canadian L/C Issuer will provide the Administrative Agent with a
copy thereof. Unless the Canadian
DEVON CREDIT AGREEMENT
60
L/C Issuer has received written notice from any Canadian Lender, the
Administrative Agent or any Loan Party, at least one Business Day prior
to the requested date of issuance or amendment of the applicable Letter
of Credit, that one or more applicable conditions contained in Article
VI shall not then be satisfied, then, subject to the terms and
conditions hereof, the Canadian L/C Issuer shall, on the requested
date, issue a Letter of Credit for the account of the applicable
Canadian Borrower or enter into the applicable amendment, as the case
may be, in each case in accordance with the Canadian L/C Issuer's usual
and customary business practices. Immediately upon the issuance of each
Canadian Letter of Credit, each Canadian Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the
Canadian L/C Issuer a risk participation in such Canadian Letter of
Credit in an amount equal to the product of such Canadian Lender's Pro
Rata Share times the amount of such Canadian Letter of Credit.
(iii) Promptly after its delivery of any Canadian Letter of
Credit or any amendment to a Canadian Letter of Credit to an advising
bank with respect thereto or to the beneficiary thereof, the Canadian
L/C Issuer will also deliver to the applicable Canadian Borrower and
the Administrative Agent a true and complete copy of such Canadian
Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Canadian
Letter of Credit of any notice of a drawing under such Letter of
Credit, the Canadian L/C Issuer shall notify the applicable Canadian
Borrower and the Administrative Agent thereof. Not later than 11:00
a.m. on the date of any payment by the Canadian L/C Issuer under a
Letter of Credit (each such date, a "Canadian Honor Date"), the
applicable Canadian Borrower shall reimburse the Canadian L/C Issuer
through the Administrative Agent in an amount equal to the amount of
such drawing whether by way of Canadian Prime Rate Committed Loans or
Canadian Base Rate Committed Loans or otherwise. If the applicable
Canadian Borrower fails so to reimburse the Canadian L/C Issuer by such
time, the Administrative Agent shall promptly notify each Canadian
Lender of the Canadian Honor Date, the amount of the unreimbursed
drawing (the "Canadian Unreimbursed Amount"), and the amount of such
Canadian Lender's Pro Rata Share thereof. In such event, the applicable
Canadian Borrower shall be deemed to have requested a Canadian
Committed Borrowing of Canadian Prime Rate Committed Loans or Canadian
Base Rate Committed Loans, if applicable, to be disbursed on the
Canadian Honor Date in an amount equal to the Canadian Unreimbursed
Amount, without regard to the minimum and multiples specified in
Section 3.02 for the principal amount of Canadian Prime Rate Committed
Loans or Canadian Base Rate Committed Loans, but subject to the amount
of the unutilized portion of the Aggregate Canadian Commitments and
whether or not the conditions set forth in Section 6.02 are satisfied.
Any notice given by the Canadian L/C Issuer or the Administrative Agent
pursuant to this Section 3.04(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
DEVON CREDIT AGREEMENT
61
(ii) Each Canadian Lender (including the Canadian Lender
acting as Canadian L/C Issuer) shall upon any notice pursuant to
Section 3.04(c)(i) make funds available to the Administrative Agent for
the account of the Canadian L/C Issuer at the Administrative Agent's
Office in an amount equal to its Pro Rata Share of the Canadian
Unreimbursed Amount not later than 1:00 p.m. on the Business Day
specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 3.04(c)(iii), each Canadian Lender
that so makes funds available shall be deemed to have made a Canadian
Loan in the form of a Canadian Prime Rate Committed Loan or Canadian
Base Rate Committed Loans, to the applicable Canadian Borrower in such
amount. The Administrative Agent shall remit the funds so received to
the Canadian L/C Issuer.
(iii) With respect to any Canadian Unreimbursed Amount that
is not fully refinanced by Canadian Prime Rate Committed Loans or
Canadian Base Rate Committed Loans because the conditions set forth in
Section 6.02 cannot be satisfied or for any other reason, the
applicable Canadian Borrower shall be deemed to have incurred from the
Canadian L/C Issuer a Canadian L/C Borrowing in the amount of the
Canadian Unreimbursed Amount that is not so refinanced, which Canadian
L/C Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at a rate per annum equal to (i) for
the first three (3) Business Days after the date of such Canadian L/C
Borrowing, the Canadian Prime Rate or the Canadian US Dollar Base Rate,
as applicable, and (ii) thereafter such rate plus two percent (2%). In
such event, each Canadian Lender's payment to the Administrative Agent
for the account of the Canadian L/C Issuer pursuant to Section
3.04(c)(ii) shall be deemed payment in respect of its participation in
such Canadian L/C Borrowing and shall constitute a Canadian L/C Advance
from such Canadian Lender in satisfaction of its participation
obligation under this Section 3.04.
(iv) Until each Canadian Lender funds its Canadian
Committed Loan or Canadian L/C Advance pursuant to this Section 3.04(c)
to reimburse the Canadian L/C Issuer for any amount drawn under any
Letter of Credit, interest in respect of such Canadian Lender's Pro
Rata Share of such amount shall be solely for the account of the
Canadian L/C Issuer.
(v) Each Canadian Lender's obligation to make Canadian
Committed Loans or Canadian L/C Advances to reimburse the Canadian L/C
Issuer for amounts drawn under Canadian Letters of Credit, as
contemplated by this Section 3.04(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including
(A) any set-off, counterclaim, recoupment, defense or other right which
such Canadian Lender may have against the Canadian L/C Issuer, the
applicable Canadian Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of
the foregoing. No such making of a Canadian L/C Advance shall relieve
or otherwise impair the obligation of the applicable Canadian Borrower
to reimburse the Canadian L/C Issuer for the amount of any payment made
by the Canadian L/C Issuer under any Letter of Credit, together with
interest as provided herein.
DEVON CREDIT AGREEMENT
62
(vi) If any Canadian Lender fails to make available to the
Administrative Agent for the account of the Canadian L/C Issuer any
amount required to be paid by such Canadian Lender pursuant to the
foregoing provisions of this Section 3.04(c) by the time specified in
Section 3.04(c), the Canadian L/C Issuer shall be entitled to recover
from such Canadian Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date
such payment is required to the date on which such payment is
immediately available to the Canadian L/C Issuer at a rate per annum
equal to the Canadian Prime Rate or the Canadian US Dollar Base Rate,
as applicable, from time to time in effect. A certificate of the
Canadian L/C Issuer submitted to any Canadian Lender (through the
Administrative Agent) with respect to any amounts owing under this
clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the Canadian L/C Issuer has made a
payment under any Letter of Credit and has received from any Canadian
Lender such Canadian Lender's Canadian L/C Advance in respect of such
payment in accordance with Section 3.04(c), if the Administrative Agent
receives for the account of the Canadian L/C Issuer any payment in
respect of the related Canadian Unreimbursed Amount or interest thereon
(whether directly from the applicable Canadian Borrower or otherwise,
including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such
Canadian Lender its Pro Rata Share thereof (appropriately adjusted, in
the case of interest payments, to reflect the period of time during
which such Canadian Lender's Canadian L/C Advance was outstanding) in
the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent
for the account of the Canadian L/C Issuer pursuant to Section
3.04(c)(i) is required to be returned under any of the circumstances
described in Section 12.07 (including pursuant to any settlement
entered into by the Canadian L/C Issuer in its discretion), each
Canadian Lender shall pay to the Administrative Agent for the account
of the Canadian L/C Issuer its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Canadian Lender, at
a rate per annum equal to the Canadian Prime Rate or Canadian US Dollar
Base Rate, as applicable, from time to time in effect.
(e) Obligations Absolute. The obligation of the applicable
Canadian Borrower to reimburse the Canadian L/C Issuer for each drawing under
each Letter of Credit and to repay each Canadian L/C Borrowing shall be
absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including
the following:
(i) any lack of validity or enforceability of such Letter
of Credit, this Agreement, or any other Loan Document;
DEVON CREDIT AGREEMENT
63
(ii) the existence of any claim, counterclaim, set-off,
defense or other right that the applicable Canadian Borrower or any
Subsidiary may have at any time against any beneficiary or any
transferee of such Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the Canadian L/C
Issuer or any other Person, whether in connection with this Agreement,
the transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under such Letter of Credit;
(iv) any payment by the Canadian L/C Issuer under such
Letter of Credit against presentation of a draft or certificate that
does not strictly comply with the terms of such Letter of Credit; or
any payment made by the Canadian L/C Issuer under such Letter of Credit
to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law;
or
(v) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or
a discharge of, any Canadian Borrower or any Subsidiary.
The applicable Canadian Borrower shall promptly examine a copy of each
Letter of Credit and each amendment thereto that is delivered to it and, in the
event of any claim of noncompliance with such Canadian Borrower's instructions
or other irregularity, the applicable Canadian Borrower will promptly notify the
Canadian L/C Issuer. Such Canadian Borrower shall be conclusively deemed to have
waived any such claim against the Canadian L/C Issuer and its correspondents
unless such notice is given as aforesaid.
(f) Role of Canadian L/C Issuer. Each Canadian Lender and each
Canadian Borrower agree that, in paying any drawing under a Letter of Credit,
the Canadian L/C Issuer shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy
of any such document or the authority of the Person executing or delivering any
such document. None of the Canadian L/C Issuer, any Agent-Related Person nor any
of the respective correspondents, participants or assignees of the Canadian L/C
Issuer shall be liable to any Canadian Lender for (i) any action taken or
omitted in connection herewith at the request or with the approval of the
Canadian Lenders or the Canadian Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Letter of Credit Application. Each Canadian Borrower hereby assumes all risks of
the acts or omissions of any beneficiary or transferee with respect to its use
DEVON CREDIT AGREEMENT
64
of any Letter of Credit; provided, however, that this assumption is not intended
to, and shall not, preclude such Canadian Borrower's pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under
any other agreement. None of the Canadian L/C Issuer, any Agent-Related Person,
nor any of the respective correspondents, participants or assignees of the
Canadian L/C Issuer, shall be liable or responsible for any of the matters
described in clauses (i) through (v) of Section 3.04(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the applicable
Canadian Borrower may have a claim against the Canadian L/C Issuer, and the
Canadian L/C Issuer may be liable to such Canadian Borrower, to the extent, but
only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the applicable Canadian Borrower which such Canadian
Borrower proves were caused by the Canadian L/C Issuer's willful misconduct or
gross negligence or the Canadian L/C Issuer's willful failure to pay under any
Letter of Credit after the presentation to it by the beneficiary of a sight
draft and certificate(s) strictly complying with the terms and conditions of a
Letter of Credit. In furtherance and not in limitation of the foregoing, the
Canadian L/C Issuer may accept documents that appear on their face to be in
order, without responsibility for further investigation, and the Canadian L/C
Issuer shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent,
(i) if the Canadian L/C Issuer has honored any full or partial drawing request
under any Letter of Credit and such drawing has resulted in a Canadian L/C
Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any Letter of
Credit for any reason remains outstanding and partially or wholly undrawn, the
applicable Canadian Borrower shall immediately Cash Collateralize the then
Outstanding Amount of all Canadian L/C Obligations (in an amount equal to such
Outstanding Amount determined as of the date of such Canadian L/C Borrowing or
the Letter of Credit Expiration Date, as the case may be). Sections 2.06 and
10.02(c) set forth certain additional requirements to deliver Cash Collateral
hereunder. The applicable Canadian Borrower hereby grants to the Administrative
Agent, for the benefit of the Canadian L/C Issuer and the Canadian Lenders, a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing. Such Cash Collateral shall be maintained in
blocked, deposit accounts at Bank of America. Pending application thereof, such
Cash Collateral shall be invested by the applicable Canadian L/C Issuer in such
investments as Canadian L/C Issuer may choose in its sole discretion. All
interest on (and other proceeds of) such investments shall be reinvested or
applied to Canadian L/C Obligations or other Canadian Obligations which are due
and payable.
(h) Applicability of ISP98 and UCP. Unless otherwise expressly
agreed by the Canadian L/C Issuer and the applicable Canadian Borrower when a
Letter of Credit is issued (including any such agreement applicable to an
Existing Canadian Letter of Credit), (i) the rules of the ISP shall apply to
each standby Letter of Credit, and (ii) the rules of the Uniform Customs and
Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce at the time of issuance shall apply to each
commercial Letter of Credit.
DEVON CREDIT AGREEMENT
65
(i) Letter of Credit Fees. The applicable Canadian Borrower shall
pay to the Administrative Agent for the account of each Canadian Lender in
accordance with its Pro Rata Share a Letter of Credit fee (the "Canadian Letter
of Credit Fee") for each Letter of Credit equal to the Applicable Rate times the
daily maximum amount available to be drawn under such Letter of Credit (whether
or not such maximum amount is then in effect under such Letter of Credit).
Canadian Letter of Credit Fees shall be (i) computed on a quarterly basis in
arrears and (ii) due and payable on the last Business Day of each March, June,
September and December, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and
thereafter on demand. If there is any change in the Applicable Rate during any
quarter, the daily maximum amount of each standby Letter of Credit shall be
computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to
Canadian L/C Issuer. The applicable Canadian Borrower shall pay directly to the
Canadian L/C Issuer for its own account a fronting fee with respect to each
Letter of Credit in the amount specified in the Fee Letter, payable on the
actual daily maximum amount available to be drawn under such Letter of Credit
(whether or not such maximum amount is then in effect under such Letter of
Credit). Such fronting fee shall be computed on a quarterly basis in arrears.
Such fronting fee shall be due and payable on the first Business Day after the
end of each March, June, September and December, commencing with the first such
date to occur after the issuance of such Letter of Credit, on the Letter of
Credit Expiration Date and thereafter on demand. In addition, the Canadian
Borrower shall pay directly to the Canadian L/C Issuer for its own account the
customary issuance, presentation, amendment and other processing fees, and other
standard costs and charges, of the Canadian L/C Issuer relating to letters of
credit as agreed to by the Canadian Borrowers and the applicable Canadian L/C
Issuer. Such customary fees and standard costs and charges are due and payable
on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict
between the terms hereof and the terms of any Issuer Document, the terms hereof
shall control.
(l) Designation of Subsidiaries as Account Parties.
Notwithstanding anything to the contrary set forth in this Agreement, including
without limitation Section 3.04(a), a Canadian Letter of Credit issued hereunder
shall, upon the request of either Canadian Borrower, be issued for the account
of any Subsidiary of such Canadian Borrower, provided that notwithstanding such
request, the applicable Canadian Borrower shall be the actual account party for
all purposes of this Agreement for such Canadian Letter of Credit and such
request shall not affect the applicable Canadian Borrower's reimbursement
obligations hereunder with respect to such Canadian Letter of Credit.
3.05 CANADIAN SWING LINE LOANS.
(a) The Canadian Swing Line. Subject to the terms and conditions
set forth herein, the Canadian Swing Line Lender agrees to make loans (each such
loan, a "Canadian Swing Line Loan") to each Canadian Borrower from time to time
on any Business Day during the Availability Period in an aggregate amount not to
exceed at any time outstanding the amount of
DEVON CREDIT AGREEMENT
66
the Canadian Swing Line Sublimit, notwithstanding the fact that such Canadian
Swing Line Loans, when aggregated with the Pro Rata Share of the Outstanding
Canadian Committed Borrowings and Canadian L/C Obligations of the Canadian
Lender acting as Canadian Swing Line Lender, may exceed the amount of such
Canadian Lender's Canadian Commitment; provided, however, that after giving
effect to any Canadian Swing Line Loan, (i) the Total Canadian Outstandings
shall not exceed the Aggregate Canadian Commitments, and (ii) the aggregate
Outstanding Amount of the Canadian Committed Loans of any Canadian Lender, plus
such Canadian Lender's Pro Rata Share of the Outstanding Amount of all Canadian
L/C Obligations, plus such Canadian Lender's Pro Rata Share of the Outstanding
Amount of all Canadian Swing Line Loans plus such Canadian Lender's Bankers'
Acceptances shall not exceed such Canadian Lender's Canadian Commitment, and
provided, further, that the applicable Canadian Borrower shall not use the
proceeds of any Canadian Swing Line Loan to refinance any outstanding Canadian
Swing Line Loan. Within the foregoing limits, and subject to any other terms and
conditions hereof, the applicable Canadian Borrower may borrow under this
Section 3.05, prepay under Section 3.06, and reborrow under this Section
3.05(a). Immediately upon the making of a Canadian Swing Line Loan, each
Canadian Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Canadian Swing Line Lender a risk participation in
such Canadian Swing Line Loan in an amount equal to the product of such Canadian
Lender's Pro Rata Share times the amount of such Canadian Swing Line Loan.
(b) Canadian Borrowing Procedures. Each Canadian Swing Line
Borrowing shall be made upon the applicable Canadian Borrower's irrevocable
notice to the Canadian Swing Line Lender and the Administrative Agent, which may
be given by telephone. Each such notice must be received by the Canadian Swing
Line Lender and the Administrative Agent not later than 3:00 p.m. on the
requested borrowing date, and shall specify (i) the amount to be borrowed, which
may be in Canadian Dollars or in US Dollars and shall be a minimum of $1,000,000
of such currency, and (ii) the requested borrowing date, which shall be a
Business Day. Each such telephonic notice must be confirmed promptly by delivery
to the Canadian Swing Line Lender and the Administrative Agent of a written
Canadian Swing Line Loan Notice, appropriately completed and signed by a
Responsible Officer of the applicable Canadian Borrower. Promptly after receipt
by the Canadian Swing Line Lender of any telephonic Canadian Swing Line Loan
Notice, the Canadian Swing Line Lender will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has also
received such Canadian Swing Line Loan Notice and, if not, the Canadian Swing
Line Lender will notify the Administrative Agent (by telephone or in writing) of
the contents thereof. Unless the Canadian Swing Line Lender has received notice
(by telephone or in writing) from the Administrative Agent (including at the
request of any Canadian Lender) prior to 1:00 p.m. for Canadian Swing Line
Borrowings made in US Dollars and 3:00 p.m. for Canadian Swing Line Borrowings
made in Canadian Dollars, in each case on the date of the proposed Canadian
Swing Line Borrowing (A) directing the Canadian Swing Line Lender not to make
such Canadian Swing Line Loan as a result of the limitations set forth in the
proviso to the first sentence of Section 3.05(a), or (B) that one or more of the
applicable conditions specified in Article VI is not then satisfied, then,
subject to the terms and conditions hereof, the Canadian Swing Line Lender will,
not later than 5:00 p.m. on the borrowing date specified in such Canadian Swing
Line Loan Notice, make the amount of its Canadian Swing Line Loan available to
the applicable Canadian Borrower at its office either
DEVON CREDIT AGREEMENT
67
by (i) crediting the account of such Canadian Borrower on the books of the
Canadian Swing Line Lender in immediately available funds or (ii) wire transfer
of such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the applicable Canadian
Borrower.
(c) Refinancing of Canadian Swing Line Loans.
(i) The Canadian Swing Line Lender at any time in its
sole and absolute discretion may request, on behalf of the applicable
Canadian Borrower (which hereby irrevocably authorizes the Canadian
Swing Line Lender to so request on its behalf), that each Canadian
Lender make a Canadian Prime Rate Committed Loan or a Canadian Base
Rate Committed Loan, as applicable, in an amount equal to such Canadian
Lender's Pro Rata Share of the amount of Canadian Swing Line Loans then
outstanding. Such request shall be made in writing (which written
request shall be deemed to be a Canadian Committed Borrowing Notice for
purposes hereof) and in accordance with the requirements of Section
3.02, without regard to the minimum and multiples specified therein for
the principal amount of Canadian Prime Rate Committed Loans or Canadian
Base Rate Committed Loans, but subject to the unutilized portion of the
Aggregate Canadian Commitments and the conditions set forth in Section
6.02. The Canadian Swing Line Lender shall furnish the applicable
Canadian Borrower with a copy of the applicable Canadian Committed
Borrowing Notice promptly after delivering such notice to the
Administrative Agent. Each Canadian Lender shall make an amount equal
to its Pro Rata Share of the amount specified in such Canadian
Committed Borrowing Notice available to the Administrative Agent in
immediately available funds for the account of the Canadian Swing Line
Lender at the Administrative Agent's Office not later than 1:00 p.m. on
the day specified in such Canadian Committed Borrowing Notice,
whereupon, subject to Section 3.05(c)(ii), each Canadian Lender that so
makes funds available shall be deemed to have made a Canadian Prime
Rate Committed Loan or Canadian Base Rate Committed Loan, as
applicable, to the Canadian Borrower in such amount. The Administrative
Agent shall remit the funds so received to the Canadian Swing Line
Lender.
(ii) If for any reason any Canadian Swing Line Loan cannot
be refinanced by such a Canadian Committed Borrowing in accordance with
Section 3.05(c)(i), the request for Canadian Prime Rate Committed Loans
or Canadian Base Rate Committed Loans, as applicable, submitted by the
Canadian Swing Line Lender as set forth herein shall be deemed to be a
request by the Canadian Swing Line Lender that each of the Canadian
Lenders fund its risk participation in the relevant Canadian Swing Line
Loan and each Canadian Lender's payment to the Administrative Agent for
the account of the Canadian Swing Line Lender pursuant to Section
3.05(c)(i) shall be deemed payment in respect of such participation.
(iii) If any Canadian Lender fails to make available to the
Administrative Agent for the account of the Canadian Swing Line Lender
any amount required to be paid by such Canadian Lender pursuant to the
foregoing provisions of this Section 3.05(c) by the time specified in
Section 3.05(c)(i), the Canadian Swing Line Lender shall be entitled
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to recover from such Canadian Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period
from the date such payment is required to the date on which such
payment is immediately available to the Canadian Swing Line Lender at a
rate per annum equal to the Canadian Prime Rate or Canadian US Dollar
Base Rate from time to time in effect. A certificate of the Canadian
Swing Line Lender submitted to any Canadian Lender (through the
Administrative Agent) with respect to any amounts owing under this
clause (iii) shall be conclusive absent manifest error.
(iv) Each Canadian Lender's obligation to make Canadian
Committed Loans or to purchase and fund risk participations in Canadian
Swing Line Loans pursuant to this Section 3.05(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including
(A) any set-off, counterclaim, recoupment, defense or other right which
such Canadian Lender may have against the Canadian Swing Line Lender,
the applicable Canadian Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of
the foregoing; provided, however, that each Canadian Lender's
obligation to make Canadian Committed Loans pursuant to this Section
3.05(c) is subject to the conditions set forth in Section 6.02. No such
funding of risk participations shall relieve or otherwise impair the
obligation of the applicable Canadian Borrower to repay Canadian Swing
Line Loans, together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Canadian Lender has purchased
and funded a risk participation in a Canadian Swing Line Loan, if the
Canadian Swing Line Lender receives any payment on account of such
Canadian Swing Line Loan, the Canadian Swing Line Lender will
distribute to such Canadian Lender its Pro Rata Share of such payment
(appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Canadian Lender's risk
participation was funded) in the same funds as those received by the
Canadian Swing Line Lender.
(ii) If any payment received by the Canadian Swing Line
Lender in respect of principal or interest on any Canadian Swing Line
Loan is required to be returned by the Canadian Swing Line Lender under
any of the circumstances described in Section 12.07 (including pursuant
to any settlement entered into by the Canadian Swing Line Lender in its
discretion), each Canadian Lender shall pay to the Canadian Swing Line
Lender its Pro Rata Share thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date
such amount is returned, at a rate per annum equal to the Canadian
Prime Rate or Canadian US Dollar Base Rate, as applicable. The
Administrative Agent will make such demand upon the request of the
Canadian Swing Line Lender.
(e) Interest for Account of Canadian Swing Line Lender. The
Canadian Swing Line Lender shall be responsible for invoicing the applicable
Canadian Borrower for interest on the Canadian Swing Line Loans. Until each
Canadian Lender funds its Canadian Prime Rate
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Committed Loan , its Canadian Base Rate Committed Loan or its risk participation
pursuant to this Section 3.05 to refinance such Canadian Lender's Pro Rata Share
of any Canadian Swing Line Loan, interest in respect of such Pro Rata Share
shall be solely for the account of the Canadian Swing Line Lender.
(f) Payments Directly to Canadian Swing Line Lender. The
applicable Canadian Borrower shall make all payments of principal and interest
in respect of the Canadian Swing Line Loans directly to the Canadian Swing Line
Lender.
3.06 PREPAYMENTS.
(a) Each Canadian Borrower may, upon notice to the Administrative
Agent, at any time or from time to time voluntarily prepay Canadian Committed
Loans in whole or in part without premium or penalty; provided that (i) such
notice must be received by the Administrative Agent not later than 11:00 a.m.
(A) three Business Days prior to any date of prepayment of Canadian Eurodollar
Rate Committed Loans or Canadian US Eurodollar Rate Committed Loans and (B) on
the date of prepayment of Canadian Prime Rate Committed Loans and Canadian Base
Rate , (ii) any prepayment of Canadian Eurodollar Rate Committed Loans shall be
in a principal amount of C$5,000,000 or a whole multiple of C$1,000,000 in
excess thereof; (ii) any prepayment of Canadian US Eurodollar Rate Committed
Loans shall be in a principal amount of US $5,000,000 or a whole multiple of US
$1,000,000 in excess thereof; (iii) any prepayment of Canadian Prime Rate
Committed Loans shall be in a principal amount of C$1,000,000 or a whole
multiple of C$100,000 in excess thereof; and (iv) any prepayment of Canadian
Base Rate Committed Loans shall be in a principal amount of US $1,000,000 or a
whole multiple of US $100,000 in excess thereof or, in each case, if less, the
entire principal amount thereof then outstanding. Each such notice shall specify
the date and amount of such prepayment and the Type(s) of Canadian Committed
Loans to be prepaid. The Administrative Agent will promptly notify each Canadian
Lender of its receipt of each such notice, and of the amount of such Canadian
Lender's Pro Rata Share of such prepayment. If such notice is given by a
Canadian Borrower, such Canadian Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein. Any prepayment of a Canadian Dollar Eurodollar Rate Loan
shall be accompanied by all accrued interest thereon, together with any
additional amounts required pursuant to Section 5.05. Each such prepayment shall
be applied to the Canadian Committed Loans of the Canadian Lenders in accordance
with their respective Pro Rata Shares.
(b) No Canadian Bid Loan may be prepaid without the prior consent
of the applicable Canadian Bid Loan Lender.
(c) Each Canadian Borrower may, upon notice to the Canadian Swing
Line Lender (with a copy to the Administrative Agent), at any time or from time
to time, voluntarily prepay Canadian Swing Line Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by
the Canadian Swing Line Lender and the Administrative Agent not later than 1:00
p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a
minimum principal amount of C $1,000,000 or US $1,000,000, as applicable. Each
such notice shall specify the date and amount of such prepayment. If such notice
is given by a
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Canadian Borrower, such Canadian Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein.
(d) If for any reason the Total Canadian Outstandings at any time
exceed the Aggregate Canadian Commitments then in effect, each Canadian Borrower
shall immediately prepay Loans and/or Cash Collateralize the Canadian L/C
Obligations in an aggregate amount equal to such excess (on a proportionate
basis having regard to the Loans and Canadian L/C Obligations of each Canadian
Borrower); provided, however, that the Canadian Borrowers shall not be required
to Cash Collateralize the Canadian L/C Obligations pursuant to this Section
3.06(d) unless after the prepayment in full of the Canadian Committed Loans and
Canadian Swing Line Loans the Total Canadian Outstandings exceed the Aggregate
Canadian Commitments then in effect.
3.07 REPAYMENT OF CANADIAN LOANS.
(a) Each Canadian Borrower shall repay to each Canadian Lender on
the Maturity Date the aggregate principal amount of its Canadian Committed Loans
and all other Canadian Obligations owing to such Lender outstanding on such
date.
(b) The applicable Canadian Borrower shall repay each Canadian Bid
Loan made to it on the last day of the Interest Period in respect thereof.
3.08 BANKERS' ACCEPTANCES.
(a) Creation of Bankers' Acceptances. Upon receipt of a Canadian
Committed Borrowing Notice requesting purchase or acceptance of Bankers'
Acceptances, and subject to the provisions of this Agreement, each Canadian
Lender shall accept, in accordance with its Canadian Pro Rata Share of the
requested Canadian Committed Borrowing from time to time such Bankers'
Acceptances as the applicable Canadian Borrower shall request.
(b) Terms of Acceptance by the Canadian Lenders.
(i) Delivery and Payment. Subject to Sections 3.08(c) and
3.08(d) and only if a valid appointment pursuant to Section 3.08(b)(v)
is not in place, the Canadian Borrowers shall pre-sign and deliver to
each Canadian Lender bankers' acceptance drafts in sufficient quantity
to meet the their requirements for anticipated Canadian Committed
Borrowings by way of Bankers' Acceptances. Each Canadian Borrower
shall, at its option, provide for payment to Administrative Agent for
the benefit of Canadian 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 Canadian Committed Borrowing in accordance with this Agreement,
or through a combination thereof. Each Canadian Borrower waives
presentment for payment of Bankers' Acceptances by Canadian Lenders and
shall not claim from Canadian Lenders any days of grace for the payment
at maturity of Bankers' Acceptances. Any amount owing by a Canadian
Borrower in respect of any Bankers' Acceptance which is not paid in
accordance with the foregoing, shall, as and from the
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71
date on which such Bankers' Acceptance matures, be deemed to be
outstanding hereunder as a Canadian Prime Rate Loan owing by such
Canadian Borrower.
(ii) No Liability. Administrative Agent and Canadian
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 Administrative Agent or a Canadian Lender failing to use
the same standard of care in the custody of such bankers' acceptance
drafts as Administrative Agent or such Canadian Lender use in the
custody of their own property of a similar nature.
(iii) Bankers' Acceptances Purchased by Canadian Lenders.
Where a Canadian Borrower so elects in the Canadian Committed Borrowing
Notice, each Canadian Lender shall purchase Bankers' Acceptances
accepted by it for an amount equal to the Canadian Discount Proceeds.
(iv) Marketing. Where a Canadian Borrower so elects in the
Canadian Committed Borrowing Notice, it shall be responsible for, and
shall make its own arrangements with respect to, the marketing of
Bankers' Acceptances, except for Bankers' Acceptances accepted by
Canadian Lenders ("Old System Issuers") who are not able to issue
Bankers' Acceptances as depository bills under the Depository Bills and
Notes Act (Canada), which Bankers' Acceptances shall in all instances
be purchased by such Old System Issuer.
(v) Power of Attorney. To facilitate the procedures
contemplated in this Agreement, each Canadian Borrower appoints each
Canadian 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 Lender for Bankers' Acceptances denominated
in Canadian Dollars. Each Bankers' Acceptance executed and delivered by
a Canadian 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 Responsible Officer of such Canadian Borrower. The foregoing
appointment shall cease to be effective, in respect of any Canadian
Lender regarding such Canadian Borrower, three Business Days following
receipt by such Canadian Lender of a written notice from such Canadian
Borrower revoking such appointment (which notice shall be copied to the
Administrative Agent); provided that any such revocation shall not
affect Bankers' Acceptances previously executed and delivered by such
Canadian Lender pursuant to such appointment.
(vi) Market. If the Canadian Required Lenders determine,
which determination shall be final conclusive and binding on the
Canadian Borrowers, that there does not exist at the applicable time a
normal market in Canada for the purchase and sale of Bankers'
Acceptances, the Administrative Agent shall so notify the Canadian
Borrowers, and the Canadian Lenders' obligation to accept Bankers'
Acceptances under this Agreement shall be suspended until such time as
the Administrative Agent (upon the instruction of the Canadian Required
Lenders) revokes such notice. During any such
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suspension, a request for a Bankers' Acceptance will be deemed to be a
request for a Canadian Prime Rate Committed Loan.
(vii) Pro-Rata Treatment of Canadian Borrowings.
(A) In the event it is not practicable to
allocate Bankers' Acceptances to each Canadian Lender such
that the aggregate amount of Bankers' Acceptances required to
be purchased by such Canadian Lender hereunder is in a whole
multiple of C$100,000, the Administrative Agent is authorized
by each Canadian Borrower and each Canadian Lender to make
such allocation as the Administrative 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
Administrative Agent may allocate (on a basis considered by it
to be equitable) the excess of such Bankers' Acceptances over
the next lowest whole multiple of C$100,000 to one Canadian
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 Canadian Committed Borrowings by
way of Bankers' Acceptances of a Canadian Lender exceed such
Canadian Lender's Pro Rata Share of the aggregate Canadian
Committed Borrowings by way of Bankers' Acceptances by more
than C$100,000 as a result of such exercise of discretion by
the Administrative Agent.
(B) If during the term of any Bankers'
Acceptance accepted by a Canadian Lender hereunder the
Canadian Stamping Fee Rate changes as a result of a change in
the Applicable Rate or an Event of Default occurs and is
continuing, the fee paid to such Canadian Lender by the
applicable Canadian Borrower pursuant to Section 4.02 (in this
paragraph called the "Initial Fee") with respect to such
Bankers' Acceptance shall be recalculated based upon such
change in the Canadian Stamping Fee Rate 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 the applicable Canadian
Borrower shall pay to such Canadian 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 the applicable Canadian
Borrower to such Canadian Lender.
(c) General Procedures for Bankers' Acceptances.
(i) Notice. Each Canadian Borrower may in a Canadian
Committed Borrowing Notice (which notice must be received by the
Administrative Agent not later than 11:00 a.m. one Business Day prior
to the date of the requested Canadian Borrowing by way of Bankers'
Acceptances) request a Canadian Borrowing by way of Bankers'
Acceptances. If such Canadian Borrower is responsible for marketing of
such Bankers' Acceptances under Section 3.08(b)(iv), such Canadian
Borrower by subsequent notice to
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73
Administrative Agent by 11:00 a.m. on the day of the requested Canadian
Borrowing by way of Bankers' Acceptances shall provide Administrative
Agent (which shall in turn promptly notify each Canadian 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 Lender is to be made against delivery to
each Canadian Lender of the applicable discount proceeds. Such discount
proceeds less the fee calculated in accordance with Section 4.02(c)
shall promptly be delivered to the Administrative Agent. Any telephone
advice given under this Section shall be subject to Section 3.02 and
shall be confirmed by a written notice of the Canadian Borrower to
Administrative Agent prior to 2:00 p.m. on the same day.
(ii) Rollover. In the case of a rollover of maturing
Bankers' Acceptances issued by a Canadian Lender, such Canadian Lender,
in order to satisfy the continuing liability of the applicable Canadian
Borrower to the Canadian Lender for the face amount of the maturing
Bankers' Acceptances issued by the applicable Canadian Borrower, shall
retain for its own account the Canadian Net Proceeds of each new
Bankers' Acceptance issued by it in connection with such rollover; and
the applicable Canadian Borrower shall, on the maturity date of the
maturing Bankers' Acceptances issued by the applicable Canadian
Borrower, pay to Administrative Agent for the benefit of Canadian
Lenders an amount equal to the difference between the face amount of
the maturing Bankers' Acceptances and the aggregate Canadian Net
Proceeds of the new Bankers' Acceptances.
(iii) Conversion from Canadian Prime Rate Loans. In the
case of a conversion from a Canadian Prime Rate Committed Loan into a
Canadian Committed Borrowing by way of Bankers' Acceptances to be
accepted by a Canadian Lender pursuant to Sections 3.08(a), (b) and
(c), such Canadian 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 owing by such Canadian Borrower being
converted, shall retain for its own account the Canadian 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 Administrative
Agent for the benefit of Canadian Lenders an amount equal to the
difference between the aggregate principal amount of the Canadian Prime
Rate Loans owing by the applicable Canadian Borrower being converted
owing to the Canadian Lenders and the aggregate Canadian Discount
Proceeds of such Bankers' Acceptances.
(iv) Conversions to Canadian Prime Rate Loans. In the case
of a conversion of a Canadian Committed Borrowing by way of Bankers'
Acceptances into Canadian Prime Rate Loan, each Canadian Lender, in
order to satisfy the liability of the 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 such Canadian Borrower provides for payment to
Administrative Agent for the benefit of Canadian Lenders of the face
amount of the maturing Bankers' Acceptance in some other manner
acceptable to Canadian Lenders, including conversion to another Type of
Canadian Borrowing.
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74
(v) Authorization. Each Canadian Borrower hereby
authorizes each Canadian 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 the applicable Canadian Borrower pursuant to Sections 3.01
and 3.02, as applicable.
(vi) Depository Notes. The parties agree that in the
administering of Bankers' Acceptances, each Canadian 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 Section 3.02 be deemed
amended to the extent necessary to comply with the requirements of such
debt clearing services.
(d) Execution of Bankers' Acceptances. The signatures of any
authorized signatory on Bankers' Acceptances may, at the option of the
applicable Canadian Borrower, be reproduced in facsimile and such Bankers'
Acceptances bearing such facsimile signatures shall be binding on the applicable
Canadian Borrower 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
the applicable Canadian Borrower 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 such Canadian Borrower.
(e) Escrowed Funds. Upon the occurrence of an Event of Default and
an acceleration of the Canadian Committed Loans under Section 10.02 or upon a
prepayment permitted under Section 3.06, each Canadian Borrower shall forthwith
pay to Administrative Agent for deposit into an escrow account maintained by and
in the name of Administrative Agent for the benefit of Canadian Lenders in
accordance with their Canadian Pro Rata Shares an amount equal to the Canadian
Lenders' maximum potential liability (as determined by Administrative Agent)
under then outstanding Bankers' Acceptances for such Canadian Borrower (the
"Canadian Escrow Funds"). The Canadian Escrow Funds shall be held by
Administrative Agent for set-off against future amounts owing by such Canadian
Borrower in respect to such Bankers' Acceptances and pending such application
shall bear interest at the rate declared by Administrative 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 Canadian Escrow Funds, together with any accrued
interest to the date of release, shall be forthwith released to the applicable
Canadian Borrower.
3.09 CURRENCY FLUCTUATIONS. Notwithstanding any other provision of
this Agreement, Administrative Agent shall have the right at any time and from
time to time to calculate the Total Canadian Outstandings at the US Dollar
Equivalent thereof in US Dollars for any purposes including making a
determination from time to time of the available undrawn portion of the
Aggregate Canadian Commitments. If following such calculation, Administrative
Agent determines that the Total Canadian Outstandings are greater than 105% of
the Aggregate
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Canadian Commitments at such time, then Administrative Agent shall so advise
each Canadian Borrower and such Canadian Borrower shall following such advice
repay, on the later of (a) five Business Days after such advice and (b) the
earlier of (i) the next Interest Payment Date for Canadian Prime Rate Loans,
(ii) the next Interest Payment Date for Canadian US Eurodollar Rate Committed
Loans or Canadian Eurodollar Rate Committed Loans, and (iii) the next maturity
date of any outstanding Bankers' Acceptance, an amount equal to the amount by
which the Total Canadian Outstandings exceeds the Aggregate Canadian
Commitments, together with all accrued interest on the amount so paid.
3.10 CURRENCY CONVERSION AND CURRENCY INDEMNITY.
(a) Each Canadian Borrower shall make payment relative to any
Canadian Borrowings (other than Canadian Base Rate Committed Loans or Canadian
US Eurodollar Rate Committed Loans) or Canadian Letter of Credit denominated in
Canadian Dollars in Canadian Dollars and shall make payment relative to Canadian
US Base Rate Committed Loans, Canadian US Eurodollar Rate Committed Loans, and
Canadian Letters of Credit denominated in US Dollars, in US Dollars. If any
payment is received on account of any such Canadian Borrowings or Letter of
Credit in any currency (the "Other Currency") other than the Applicable Currency
(whether voluntarily, pursuant to any conversion of a Canadian Borrowing or
pursuant to an order or judgment or the enforcement thereof or the realization
of any security or the liquidation of a Canadian Borrower or otherwise
howsoever), such payment shall constitute a discharge of the liability of such
Canadian Borrower hereunder and under the other Loan Documents in respect
thereof only to the extent of the amount of the Applicable Currency which the
Administrative Agent or relevant Canadian Lenders 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.
(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 Canadian Dollars, 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
each Canadian Borrower shall be obligated to pay the Administrative Agent or
Canadian Lenders any deficiency in accordance with Section 3.10(a). For the
foregoing purposes "rate of exchange" means the rate at which the Administrative
Agent or relevant Canadian Lenders, as applicable, in accordance with their
normal banking procedures are able on the relevant date to purchase Canadian
Dollars with the Judgment Currency after deducting any premium and costs of
exchange.
(c) If the Administrative Agent or any Canadian Lender receives
any payment or payments on account of the liability of a Canadian Borrower
hereunder pursuant to any judgment or order in any Other Currency, and the
amount of Canadian Dollars which the Administrative Agent or relevant Canadian
Lender 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 Canadian Dollars due in respect of such liabilities immediately
prior to such judgment or order, then such Canadian Borrower shall, within five
Business Days after demand, and such Canadian Borrower
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hereby agrees to, indemnify and save Administrative Agent or such Canadian
Lender 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 Administrative Agent or the Lenders 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.
GENERAL PROVISIONS APPLICABLE TO SENIOR
CREDIT FACILITY AND CANADIAN SUBFACILITY
4.01 INTEREST ON LOANS.
(a) Subject to the provisions of subsection (c) below, (i) each US
Eurodollar Rate Committed Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to the US
Dollar Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii)
each US Base Rate Committed Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the US Base Rate; (iii) each US Bid Loan shall bear interest on the
outstanding principal amount thereof for the Interest Period therefor at a rate
per annum equal to the US Dollar Eurodollar Rate for such Interest Period plus
(or minus) the US Eurodollar Bid Margin, or at the Absolute Rate for such
Interest Period, as the case may be; and (iv) each US Swing Line Loan shall bear
interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the US Swing Line Rate.
(b) Subject to the provisions of subsection (c) below, (i) each
Canadian Eurodollar Rate Committed Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the Canadian Dollar Eurodollar Rate for such Interest Period plus the Applicable
Rate; (ii) each Canadian US Eurodollar Rate Committed Loan shall bear interest
on the outstanding principal amount thereof for each Interest Period at a rate
per annum equal to the US Dollar Eurodollar Rate for such Interest Period plus
the Applicable Rate; (iii) each Canadian Prime Rate Committed Loan shall bear
interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Canadian Prime Rate; (iv) each
Canadian Base Rate Committed Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Canadian US Dollar Base Rate; (v) each Canadian Bid Loan shall bear
interest on the outstanding principal amount thereof for the Interest Period
therefor at a rate per annum equal to the Canadian Dollar Eurodollar Rate for
such Interest Period plus (or minus) the Canadian Eurodollar Bid Margin, or at
the Absolute Rate for such Interest Period, as the case may be; and (vi) each
Canadian Swing Line Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the
Canadian Swing Line Rate.
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(i) If any amount of principal of any Loan is not paid
when due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, such amount shall
thereafter bear interest at a fluctuating interest rate per annum at
all times equal to the rate two percent (2%) above the rate that was
applicable to such Loan before a principal payment on such Loan became
past due, to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan)
payable by the applicable Borrower under any Loan Document is not paid
when due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, then upon the request of
(x) the US Required Lenders, in the case of a US Obligation, or (y) the
Canadian Required Lenders, in the case of a Canadian Obligation, such
amount shall thereafter bear interest at a fluctuating interest rate
per annum at all times equal to, in the case of a US Obligation, the US
Base Rate plus two percent (2%), and, in the case of a Canadian
Obligation, the Canadian Prime Rate plus two percent (2%) to the
fullest extent permitted by applicable Laws.
(iii) Accrued and unpaid interest on past due amounts
(including interest on past due interest) shall be due and payable upon
demand.
(c) Interest on each Loan shall be due and payable in arrears on
each Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
(d) For the purposes of the Interest Act (Canada), whenever
interest payable pursuant to this Agreement with respect to the Canadian
Borrowings, Canadian L/C Obligations and other amounts payable hereunder or
under the other Loan Documents with respect thereto is calculated on the basis
of a period other than a calendar year (the "Relevant 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 Relevant Period.
(e) To the extent permitted by law, the provisions of the Judgment
Interest Act (Alberta) R.S.A. 2000 X.X-1 shall not apply to the Loan Documents
and are hereby expressly waived by Canadian Borrowers.
(f) For the purposes of the Interest Act (Canada), the principle
of deemed reinvestment of interest shall not apply to any interest calculation
under the Loan Documents with respect to the Canadian Borrowings, Canadian L/C
Obligations, Bankers' Acceptances and other amounts payable hereunder or under
the other Loan Documents with respect thereto, and the rates of interest
stipulated in this Agreement are intended to be nominal rates and not effective
rates or yields.
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4.02 FEES. In addition to certain fees described in subsections (i)
and (j) of Section 2.04 and subsections (i) and (j) of Section 3.04:
(a) Facility Fees.
(i) The US Borrower shall pay to the Administrative Agent
for the account of each Lender in accordance with its Pro Rata Share, a
facility fee equal to the Applicable Rate times the actual daily amount
of the Aggregate US Commitments (or, if the Aggregate US Commitments
have terminated, on the Outstanding Amount of all US Committed Loans,
US Swing Line Loans and US L/C Obligations), regardless of usage.
(ii) Devon Canada shall pay to the Administrative Agent
for the account of each Canadian Lender in accordance with its Pro Rata
Share, a facility fee equal to the Applicable Rate times the actual
daily amount of the Aggregate Canadian Commitments (or, if the
Aggregate Canadian Commitments have terminated, on the Outstanding
Amount of all Canadian Committed Loans, Canadian Swing Line Loans and
Canadian L/C Obligations), regardless of usage.
(iii) The facility fees shall accrue at all times during
the Availability Period (and thereafter so long as any Committed Loans,
Swing Line Loans or L/C Obligations remain outstanding), including at
any time during which one or more of the conditions in Article VI is
not met, and shall be due and payable quarterly in arrears on the first
Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the Closing Date,
and on the Maturity Date (and, if applicable, thereafter on demand).
The facility fees shall be calculated quarterly in arrears, and if
there is any change in the Applicable Rate during any quarter, the
actual daily amount shall be computed and multiplied by the Applicable
Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(b) Utilization Fees.
(i) The US Borrower shall pay to the Administrative Agent
for the account of each Lender in accordance with its Pro Rata Share, a
utilization fee equal to the Applicable Rate times the Total
Outstandings on each day that the Total Outstandings exceed 50% of the
actual daily amount of the Aggregate Commitments then in effect (or, if
terminated, in effect immediately prior to such termination).
(ii) The utilization fees shall accrue at all times during
the Availability Period (and thereafter so long as any Committed Loans,
Swing Line Loans or L/C Obligations remain outstanding), including at
any time during which one or more of the conditions in Article VI is
not met, and shall be due and payable quarterly in arrears on the first
Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the Closing Date,
and on the Maturity Date (and, if applicable, thereafter on demand).
The utilization fee shall be calculated quarterly in arrears, and if
there is any change in the Applicable Rate during any quarter, the
actual
DEVON CREDIT AGREEMENT
79
daily amount shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable
Rate was in effect.
(c) Canadian Stamping Fee. In consideration of each Canadian
Lender's commitment to accept Bankers' Acceptances under this Agreement, the
applicable Canadian Borrower will pay to Administrative Agent for the account of
each Canadian Lender the Canadian Stamping Fee Rate multiplied by the face
amount of each Bankers' Acceptance accepted by such Canadian 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 Lender is purchasing such Bankers'
Acceptance, such fee shall be deducted from the Canadian Discount Proceeds paid
to the applicable Canadian Borrower.
(d) Other Fees. The Borrowers shall pay to the Joint Lead
Arrangers and the Administrative Agent for their own respective accounts fees in
the amounts and at the times specified in the Fee Letter. Such fees shall be
fully earned when paid and shall not be refundable for any reason whatsoever.
4.03 COMPUTATION OF INTEREST AND FEES ON LOANS. All computations of
(a) interest for (i) US Base Rate Loans, (ii) Canadian Base Rate Committed
Loans, and (iii) Canadian Prime Rate Loans, and (b) stamping fees for Bankers'
Acceptances shall be made on the basis of a year of 365 or 366 days, as the case
may be, and actual days elapsed. All other computations of fees and interest on
Loans shall be made on the basis of a 360-day year and actual days elapsed
(which results in more fees or interest, as applicable, being paid than if
computed on the basis of a 365-day year). Interest shall accrue on each Loan for
the day on which the Loan is made, and shall not accrue on a Loan, or any
portion thereof, for the day on which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall, subject
to Section 4.05(a), bear interest for one day.
4.04 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced
by one or more accounts or records maintained with respect to each applicable
Borrower by such Lender and by the Administrative Agent in the ordinary course
of business. The accounts or records maintained by the Administrative Agent and
each Lender shall be conclusive absent manifest error of the amount of the
Credit Extensions made by the Lenders to the Borrowers and the interest and
payments thereon. Any failure so to record or any error in doing so shall not,
however, limit or otherwise affect the obligation of the Borrowers hereunder to
pay any amount owing with respect to the Obligations. In the event of any
conflict between the accounts and records maintained by any Lender and the
accounts and records of the Administrative Agent in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of
manifest error. Upon the request of any Lender made through the Administrative
Agent, the applicable Borrower shall execute and deliver to such Lender (through
the Administrative Agent) a Note, which shall evidence such Lender's Loans in
addition to such accounts or records. Each Lender may attach schedules to its
Note and endorse thereon the date, Type (if applicable), amount and maturity of
its Loans and payments with respect thereto.
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(b) In addition to the accounts and records referred to in
subsection (a), each Lender and the Administrative Agent shall maintain in
accordance with its usual practice accounts or records evidencing the purchases
and sales by such Lender of participations in Letters of Credit and Swing Line
Loans. In the event of any conflict between the accounts and records maintained
by the Administrative Agent and the accounts and records of any Lender in
respect of such matters, the accounts and records of the Administrative Agent
shall control in the absence of manifest error.
4.05 PAYMENTS GENERALLY.
(a) All payments to be made by any Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by any Borrower
hereunder shall be made to the Administrative Agent or in the case of Canadian
Borrowings or Canadian Letters of Credit to the Administrative Agent at the
Canadian Payment Office, for the account of the respective Lenders to which such
payment is owed, at the Administrative Agent's Office or the Canadian Payment
Office, as applicable, in the Applicable Currency, and in immediately available
funds not later than 2:00 p.m. on the date specified herein. The Administrative
Agent or the Administrative Agent's office, as applicable, will promptly
distribute to each applicable Lender its Pro Rata Share (or other applicable
share as provided herein) of such payment in like funds as received by wire
transfer to such Lender's Lending Office. All payments received by the
Administrative Agent after 2:00 p.m. shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue.
(b) If any payment to be made by any Borrower shall come due on a
day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing
interest or fees, as the case may be.
(c) Unless any Borrower or any Lender has notified the
Administrative Agent, prior to the date any payment is required to be made by it
to the Administrative Agent hereunder, that such Borrower or such Lender, as the
case may be, will not make such payment, the Administrative Agent may assume
that such Borrower or such Lender, as the case may be, has timely made such
payment and may (but shall not be so required to), in reliance thereon, make
available a corresponding amount to the Person entitled thereto. If and to the
extent that such payment was not in fact made to the Administrative Agent in
immediately available funds, then:
(i) if any Borrower failed to make such payment, each
applicable Lender shall forthwith on demand repay to the Administrative
Agent the portion of such assumed payment that was made available to
such Lender in immediately available funds, together with interest
thereon in respect of each day from and including the date such amount
was made available by the Administrative Agent to such Lender to the
date such amount is repaid to the Administrative Agent in immediately
available funds at the Federal Funds Rate (or in the case of the
Canadian Loans or Canadian Letters of Credit, the Canadian Prime Rate)
from time to time in effect; and
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(ii) if any Lender failed to make such payment, such
Lender shall forthwith on demand pay to the Administrative Agent the
amount thereof in immediately available funds, together with interest
thereon for the period from the date such amount was made available by
the Administrative Agent to the applicable Borrower to the date such
amount is recovered by the Administrative Agent (the "Compensation
Period") at a rate per annum equal to the Federal Funds Rate from time
to time in effect. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's
Committed Loan or Bid Loan, as the case may be, included in the
applicable Borrowing. If such Lender does not pay such amount forthwith
upon the Administrative Agent's demand therefor, the Administrative
Agent may make a demand therefor upon the applicable Borrower, and such
Borrower shall pay such amount to the Administrative Agent, together
with interest thereon for the Compensation Period at a rate per annum
equal to the rate of interest applicable to the applicable Borrowing.
Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment or to prejudice any rights which
the Administrative Agent or any Borrower may have against any Lender as
a result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or any Borrower with
respect to any amount owing under this subsection (c) shall be conclusive,
absent manifest error.
(d) If any Lender makes available to the Administrative Agent
funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article IV, and such funds are not made available to the
applicable Borrower by the Administrative Agent because the conditions to the
applicable Credit Extension set forth in Article VI are not satisfied or waived
in accordance with the terms hereof, the Administrative Agent shall return such
funds (in like funds as received from such Lender) to such Lender, without
interest.
(e) The obligations of the Lenders hereunder to make US Committed
Loans and to fund participations in US Letters of Credit and US Swing Line Loans
are several and not joint. The failure of any Lender to make any US Committed
Loan or to fund any such participation on any date required hereunder shall not
relieve any other Lender of its corresponding obligation to do so on such date,
and no Lender shall be responsible for the failure of any other Lender to so
make its US Committed Loan or purchase its participation.
(f) The obligations of the Canadian Lenders hereunder to make
Canadian Committed Loans, to accept or purchase Bankers' Acceptances, and to
fund participations in Canadian Letters of Credit and Canadian Swing Line Loans
are several and not joint. The failure of any Canadian Lender to make any
Canadian Committed Loan, to accept or purchase any Bankers' Acceptance, or to
fund any such participation on any date required hereunder shall not relieve any
other Canadian Lender of its corresponding obligation to do so on such date, and
no Canadian Lender shall be responsible for the failure of any other Canadian
Lender to so make its Canadian Committed Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to
obtain the funds for any Loan in any particular place or manner or to constitute
a representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
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4.06 SHARING OF PAYMENTS.
(a) If, other than as expressly provided elsewhere herein, any
Lender shall obtain on account of the US Committed Loans made by it, or the
participations in US L/C Obligations or in US Swing Line Loans held by it, any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (i) notify the
Administrative Agent of such fact, and (ii) purchase from the other Lenders such
participations in the US Committed Loans made by them and/or such
subparticipations in the participations in US L/C Obligations or US Swing Line
Loans held by them, as the case may be, as shall be necessary to cause such
purchasing Lender to share the excess payment in respect of such US Committed
Loans or such participations, as the case may be, pro rata with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from the applicable purchasing Lender under any of the
circumstances described in Section 12.07 (including pursuant to any settlement
entered into by the purchasing Lender in its discretion), such purchase shall to
that extent be rescinded and each other applicable Lender shall repay to the
purchasing Lender the purchase price paid therefor, together with an amount
equal to such paying Lender's ratable share (according to the proportion of (i)
the amount of such paying Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered,
without further interest thereon. The US Borrower agrees that any Lender so
purchasing a participation from the other Lender may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off, but subject to Section 12.10) with respect to such participation as
fully as if such Lender were the direct creditor of the US Borrower in the
amount of such participation. The Administrative Agent will keep records (which
shall be conclusive and binding in the absence of manifest error) of
participations purchased under this subsection and will in each case notify the
applicable Lenders following any such purchases or repayments. Each Lender that
purchases a participation pursuant to this subsection shall from and after such
purchase have the right to give all notices, requests, demands, directions and
other communications under this Agreement with respect to the portion of the US
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the US Obligations purchased.
(b) If, other than as expressly provided elsewhere herein, any
Canadian Lender shall obtain on account of the Canadian Committed Loans made by
it, the Bankers' Acceptances accepted by it, or the participations in Canadian
L/C Obligations or in Canadian Swing Line Loans held by it, any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) in excess of its ratable share (or other share contemplated
hereunder) thereof, such Canadian Lender shall immediately (i) notify the
Administrative Agent of such fact, and (ii) purchase from the other Canadian
Lenders such participations in the Canadian Committed Loans and Bankers'
Acceptances made by them and/or such subparticipations in the participations in
Canadian L/C Obligations or Canadian Swing Line Loans held by them, as the case
may be, as shall be necessary to cause such purchasing Canadian Lender to share
the excess payment in respect of such Canadian Committed Loans and Bankers'
Acceptances or such participations, as the case may be, pro rata with each of
them; provided, however, that if all or any portion of such excess payment is
thereafter recovered from the applicable purchasing
DEVON CREDIT AGREEMENT
83
Canadian Lender under any of the circumstances described in Section 12.07
(including pursuant to any settlement entered into by the purchasing Canadian
Lender in its discretion), such purchase shall to that extent be rescinded and
each other applicable Canadian Lender shall repay to the purchasing Canadian
Lender the purchase price paid therefor, together with an amount equal to such
paying Canadian Lender's ratable share (according to the proportion of (i) the
amount of such paying Canadian Lender's required repayment to (ii) the total
amount so recovered from the purchasing Canadian Lender) of any interest or
other amount paid or payable by the purchasing Canadian Lender in respect of the
total amount so recovered, without further interest thereon. The Canadian
Borrowers agree that any Canadian Lender so purchasing a participation from
another Canadian Lender may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of set-off, but subject to
Section 12.10) with respect to such participation as fully as if such Canadian
Lender were the direct creditor of the applicable Canadian Borrower in the
amount of such participation. The Administrative Agent will keep records (which
shall be conclusive and binding in the absence of manifest error) of
participations purchased under this subsection and will in each case notify the
applicable Canadian Lenders following any such purchases or repayments. Each
Canadian Lender that purchases a participation pursuant to this subsection shall
from and after such purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Canadian Obligations purchased to the same extent as
though the purchasing Canadian Lender were the original owner of the Canadian
Obligations purchased.
4.07 CANADIAN REALLOCATION OF THE COMMITMENTS The Borrowers may by
notice to the Administrative Agent reallocate a portion of the Aggregate
Commitments specified therein as part of the Aggregate Canadian Commitments;
provided that (i) any such notice shall be received by the Administrative Agent
not later than 11:00 a.m. five Business Days prior to the date such reallocation
shall become effective, (ii) any such reallocation shall be in an aggregate
amount of US $50,000,000 if the amount of the Aggregate Canadian Commitments at
the time of such reallocation is zero, and otherwise in an aggregate amount of
US $10,000,000 or in each case any whole multiple of US $1,000,000 in excess
thereof, or shall be a reallocation to zero, (iii) after any such reallocation,
the amount of the Aggregate Canadian Commitments shall be equal to or greater
than US $50,000,000 or shall be zero, (iv) the Borrowers shall not reallocate
any portion of the Aggregate Commitments if, after giving effect thereto and to
any concurrent prepayments hereunder (a) the Total Outstandings would exceed the
Aggregate Commitments, (b) the Total Canadian Outstandings would exceed the
Aggregate Canadian Commitments, (c) the sum of any Lender's outstanding US
Committed Loans plus such Lender's Pro Rata Share of outstanding US L/C
Obligations and US Swing Line Loans would exceed such Lender's US Commitment; or
(d) the sum of any Canadian Lender's outstanding Canadian Committed Loans and
Bankers' Acceptances plus such Canadian Lender's Pro Rata Share of outstanding
Canadian L/C Obligations and Canadian Swing Line Loans would exceed such
Canadian Lender's Canadian Commitment, and (v) the Borrowers shall make not more
than four reallocations of the Commitments in any calendar year. The
Administrative Agent will promptly notify the Lenders or their Canadian branches
or affiliates with Canadian Commitments of any such notice of reallocation of
the Commitments and the amount of their respective Canadian Commitments, and
shall notify all Lenders of the Commitments and the Aggregate Canadian
Commitments upon the effectiveness of such reallocation.
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84
4.08 EXTENSION OF MATURITY DATE.
(a) Not earlier than 60 days prior to, nor later than 45 days
prior to, each anniversary of the Closing Date, the US Borrower may, upon notice
to the Administrative Agent (which shall promptly notify the Lenders), request a
one-year extension of the Maturity Date then in effect. Within 30 days of
delivery of such notice, each Lender shall notify the Administrative Agent
whether or not it consents to such extension (which consent may be given or
withheld in such Lender's sole and absolute discretion). Any Lender not
responding within the above time period shall be deemed not to have consented to
such extension. The Administrative Agent shall promptly notify the US Borrower
and the Lenders of the Lenders' responses.
(b) The Maturity Date shall be extended only if Lenders holding at
least 75% of the Aggregate Commitments (calculated excluding Defaulting Lenders
and prior to giving effect to any replacements of Lenders permitted herein) (the
"Consenting Lenders") have consented thereto. If so extended, the Maturity Date,
as to the Consenting Lenders, shall be extended to the same date in the
following year, effective as of the Maturity Date then in effect (such existing
Maturity Date being the "Extension Effective Date"). The Administrative Agent
and the US Borrower shall promptly confirm to the Lenders such extension and the
Extension Effective Date. As a condition precedent to such extension, the US
Borrower shall deliver to the Administrative Agent a certificate of each Loan
Party dated as of the Extension Effective Date (in sufficient copies for each
Lender) signed by a Responsible Officer of such Loan Party (i) certifying and
attaching the resolutions adopted by such Loan Party approving or consenting to
such extension and (ii) in the case of each Borrower, certifying that, (A)
before and after giving effect to such extension, the representations and
warranties contained in Article VII and the other Loan Documents made by it are
true and correct in all material respects on and as of the Extension Effective
Date, except to the extent that such representations and warranties specifically
refer to an earlier date, (B) before and after giving effect to such extension
no Default exists or will exist, and (C) no event has occurred since the date of
the most recent audited financial statements of the US Borrower delivered
pursuant to Section 8.02(a) that has had, or could reasonably be expected to
have, a Material Adverse Effect. The US Borrower shall prepay any US Committed
Loans outstanding on the Extension Effective Date (and pay any additional
amounts required pursuant to Section 5.05) to the extent necessary to keep
outstanding US Committed Loans ratable with any revised and new Pro Rata Shares
of all the Lenders effective as of the Extension Effective Date. Each Canadian
Borrower shall prepay any Canadian Committed Loans owing by it outstanding on
the Extension Effective Date (and pay any additional amounts required pursuant
to Section 5.05) to the extent necessary to keep outstanding Canadian Committed
Loans ratable with any revised and new Pro Rata Shares of all the Canadian
Lenders effective as of the Extension Effective Date.
(c) If any Lender does not consent to the extension of the
Maturity Date as provided in this Section 4.08, the US Borrower shall have the
right to replace such Lender in accordance with Section 12.17.
(d) This Section shall supersede any provisions in Section 4.06 or
12.01 to the contrary.
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85
4.09 INCREASE IN COMMITMENTS.
(a) Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the US Borrower
may, from time to time, request an increase in the Aggregate Commitments to an
amount not exceeding US $2,000,000,000; provided that (i) any such request for
an increase shall be in a minimum amount of US $50,000,000, and (ii) the US
Borrower may make a maximum of two such requests per calendar year. At the time
of sending such notice, the US Borrower (in consultation with the Administrative
Agent) shall specify the time period within which each Lender is requested to
respond (which shall in no event be less than ten Business Days from the date of
delivery of such notice to the Lenders). Each Lender shall notify the
Administrative Agent within such time period whether or not it agrees to
increase its Commitment and, if so, whether by an amount equal to, greater than,
or less than its Pro Rata Share of such requested increase. Any Lender not
responding within such time period shall be deemed to have declined to increase
its Commitment. The Administrative Agent shall notify the US Borrower and each
Lender of the Lenders' responses to each request made hereunder. To achieve the
full amount of a requested increase, the US Borrower may also invite additional
Eligible Assignees to become Lenders pursuant to a joinder agreement in form and
substance reasonably satisfactory to the Administrative Agent and its counsel.
(b) If the Aggregate Commitments are increased in accordance with
this Section, the Administrative Agent and the US Borrower shall determine the
effective date (the "Increase Effective Date") and the final allocation of such
increase. The Administrative Agent shall promptly notify the US Borrower and the
Lenders of the final allocation of such increase and the Increase Effective
Date. As a condition precedent to such increase, the US Borrower shall deliver
to the Administrative Agent a certificate of each Loan Party dated as of the
Increase Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer of such Loan Party (i) certifying and attaching the
resolutions adopted by such Loan Party approving or consenting to such increase,
and (ii) in the case of each Borrower, certifying that, before and after giving
effect to such increase, (A) the representations and warranties contained in
Article VII and the other Loan Documents made by it are true and correct in all
material respects on and as of the Extension Effective Date, except to the
extent that such representations and warranties specifically refer to an earlier
date, in which case they are true and correct in all material respects as of
such earlier date, and (B) no Default exists. The US Borrower shall prepay any
US Committed Loans outstanding on the Increase Effective Date (and pay any
additional amounts required pursuant to Section 5.05) to the extent necessary to
keep the outstanding US Committed Loans ratable with any revised Pro Rata Shares
arising from any nonratable increase in the US Commitments under this Section.
Each Canadian Borrower shall prepay any Canadian Committed Loans owing by it and
outstanding on the Increase Effective Date (and pay any additional amounts
required pursuant to Section 5.05) to the extent necessary to keep the
outstanding Canadian Committed Loans ratable with any revised Pro Rata Shares
arising from any nonratable increase in the Canadian Commitments under this
Section.
(c) This Section shall supersede any provisions in Sections 4.06
or 12.01 to the contrary.
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4.10 TERMINATION OR REDUCTION OF COMMITMENTS. The US Borrower may,
upon notice to the Administrative Agent, terminate the Aggregate Commitments
(including the Aggregate Canadian Commitments), or from time to time permanently
reduce the Aggregate Commitments (and proportionately reduce the Aggregate
Canadian Commitments); provided that (i) any such notice shall be received by
the Administrative Agent not later than 11:00 a.m. two Business Days prior to
the date of termination or reduction, (ii) any such partial reduction shall be
in an aggregate amount of US $10,000,000 or any whole multiple of US $1,000,000
in excess thereof, (iii) the US Borrower shall not terminate or reduce the
Aggregate Commitments (and the Aggregate Canadian Commitments, if applicable)
if, after giving effect thereto and to any concurrent prepayments hereunder, (1)
the Total Outstandings would exceed the Aggregate Commitments, (2) the Total US
Outstandings would exceed the Aggregate US Commitments, or (3) the Total
Canadian Outstandings would exceed the Aggregate Canadian Commitments, and (iv)
if, after giving effect to any reduction of the Aggregate Commitments, the US
Letter of Credit Sublimit or the US Swing Line Sublimit exceeds the amount of
the Aggregate US Commitments or the Canadian Letter of Credit Sublimit or the
Canadian Swing Line Sublimit exceeds the Aggregate Canadian Commitments, such
Sublimits shall be automatically reduced by the amount of such excess. The
Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Aggregate Commitments. Any reduction of the
Aggregate Commitments shall be applied to the US Commitment of each Lender
according to such Lender's Pro Rata Share. All fees accrued until the effective
date of any termination of the Aggregate Commitments shall be paid on the
effective date of such termination.
ARTICLE V.
TAXES, YIELD PROTECTION AND ILLEGALITY
5.01 TAXES.
(a) Any and all payments by any Borrower to or for the account of
the Administrative Agent or any Lender under any Loan Document shall be made
free and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its
overall net income, and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the
Laws of which the Administrative Agent or such Lender, as the case may be, is
organized or maintains a lending office (all such non-excluded taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or similar charges,
and liabilities being hereinafter referred to as "Taxes"). If any Borrower shall
be required by any Laws to deduct any Taxes from or in respect of any sum
payable under any Loan Document to the Administrative Agent or any Lender, (i)
subject to compliance by such Lender with Sections 12.16 and 5.01(g), as
applicable, the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section), each of the Administrative Agent and such Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions, (iii) such
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable Laws, and (iv) within 30 days
DEVON CREDIT AGREEMENT
87
after the date of such payment, such Borrower shall furnish to the
Administrative Agent (which shall forward the same to such Lender) the original
or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrowers agree to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If any Borrower shall be required to deduct or pay any Taxes
or Other Taxes from or in respect of any sum payable under any Loan Document to
the Administrative Agent or any Lender, such Borrower shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time interest
is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all
taxes, including taxes imposed on or measured by net income) that the
Administrative Agent or such Lender would have received if such Taxes or Other
Taxes had not been imposed.
(d) Subject to compliance by such Lender with Sections 12.16
and 5.01(g), as applicable, each Borrower agrees to indemnify the Administrative
Agent and each Lender for (i) the full amount of Taxes and Other Taxes
(including any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section) paid by the Administrative Agent and such
Lender, (ii) amounts payable under Section 5.01(c) and (iii) any liability
(including additions to tax, penalties, interest and expenses) arising therefrom
or with respect thereto, in each case whether or not such Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority; provided that the Borrowers shall not be obligated to indemnify the
Administrative Agent or any Lender pursuant to this Section 5.01(d) in respect
of penalties, interest or expenses arising from or with respect to such Taxes or
Other Taxes if such penalties, interest or expenses are attributable to the
gross negligence or willful misconduct of the Person seeking indemnification.
Any payment required to be made under this Section 5.01(d) shall be made within
30 days after the date such Lender or the Administrative Agent makes a demand
therefor.
(e) In the event that any Lender or the Administrative Agent
receives a refund in respect of Taxes or Other Taxes as to which it has been
paid additional amounts by any Borrower pursuant to clause (a) or (b) above or
indemnified by any Borrower pursuant to clause (d) and such Lender or
Administrative Agent, as applicable, reasonably determines that such refund is
attributable to such additional amounts or indemnification, then such Lender or
Administrative Agent, as applicable, shall promptly notify the Administrative
Agent and the applicable Borrower and shall within 30 Business Days remit to
such Borrower an amount as such Lender or Administrative Agent, as applicable,
determines to be the proportion of the refunded amount as will leave it, after
such remittance, in no better or worse position than it would have been if the
Taxes or Other Taxes had not been imposed and the corresponding additional
amounts or indemnification payment not been made; provided, that such Borrower,
upon request by the Administrative Agent or such Lender, shall promptly return
such refund to the Administrative Agent or such Lender, as the case may be, in
the event that the Administrative
DEVON CREDIT AGREEMENT
88
Agent or such Lender is required to repay such refund to the relevant
Governmental Authority. Nothing contained in this Section 5.01(e) shall require
the Administrative Agent or any Lender to make available to any Borrower any of
its tax returns or any other information relating to its taxes that it deems to
be confidential.
(f) If requested by any Borrower, any Lender claiming any
indemnity or additional amounts payable pursuant to this Section 5.01 shall use
its reasonable efforts (consistent with its reasonable internal policy and legal
and regulatory restrictions) to change the jurisdiction of its designated
Lending Office if the making of such a change would avoid the need for, or
reduce the amount of, any such indemnity or additional amounts which would be
payable or may thereafter accrue; provided, that such designation would not, in
the sole judgment of such Lender exercised in good faith, be otherwise
disadvantageous to such Lender; provided, further, that nothing in this Section
5.01(f) shall adversely affect or postpone any of the obligations of any
Borrower or the rights of any Lender under this Agreement.
(g) Each Canadian Lender that is not a Canadian Resident Lender
shall deliver, or have its applicable lending office deliver, to the Canadian
Borrowers and the Administrative Agent on the date on which such Canadian Lender
or such applicable lending office becomes a Canadian Lender hereunder (whether
by way of becoming a successor Canadian Lender or otherwise), notice that the
Canadian Lender is not a Canadian Resident Lender. In addition, if there is any
change in such status, the applicable Canadian Lender shall provide notice of
such change promptly to the Canadian Borrowers and the Administrative Agent.
Notwithstanding any provision hereof to the contrary and for the avoidance of
doubt, it is acknowledged by the parties that there may be Canadian tax imposed
under Part XIII of the Income Tax Act (Canada) ("Canadian Withholding Tax") on
any payments as, on account or in lieu of payment of, or in satisfaction of,
interest and other fees paid by the Canadian Borrowers or the Administrative
Agent under the Canadian SubFacility (but, for greater certainty, excluding any
payments under the Guaranties) to persons who are not Canadian Resident Lenders
(such payments a "Taxable Payment"). The Canadian Borrowers shall have no
obligation to make any additional or increased payment under clause (a) or
clause (c) above, or to indemnify the Administrative Agent or a Canadian Lender
under clause (d) above, in respect of any Canadian Withholding Tax on a Taxable
Payment, and the Canadian Borrowers shall be entitled to deduct and remit to the
proper Canadian taxing authorities any such Canadian Withholding Tax from any
such Taxable Payments.
5.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund US
Dollar Eurodollar Rate Loans, or Canadian Dollar Eurodollar Rate Loans, as
applicable, or to determine or charge interest rates based upon the US Dollar
Eurodollar Rate or the Canadian Dollar Eurodollar Rate, then, on notice thereof
by such Lender to each applicable Borrower through the Administrative Agent, any
obligation of such Lender (a) to make or continue US Dollar Eurodollar Rate
Loans or Canadian US Eurodollar Rate Committed Loans, or (b) to convert (i) US
Base Rate Committed Loans to US Eurodollar Rate Committed Loans or (ii) Canadian
Prime Rate Committed Loans or Canadian Base Rate Committed Loans to Canadian
Eurodollar Rate Committed Loans or Canadian US Eurodollar Rate Committed Loans,
shall be suspended until such Lender notifies the Administrative Agent
DEVON CREDIT AGREEMENT
89
and each applicable Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, each applicable
Borrower shall, upon demand from such Lender (with a copy to the Administrative
Agent), prepay or, if applicable, (a) convert all US Dollar Eurodollar Rate
Loans or Canadian US Eurodollar Rate Committed Loans of such Lender to US Base
Rate Loans, or Canadian Base Rate Committed Loans, as the case may be, and (b)
convert all Canadian Dollar Eurodollar Rate Loans of such Lender to Canadian
Prime Rate Committed Loans, either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such US Dollar
Eurodollar Rate Loans or Canadian Dollar Eurodollar Rate Loans, as the case may
be, to such day, or immediately, if such Lender may not lawfully continue to
maintain such US Dollar Eurodollar Rate Loans or Canadian Eurodollar Rate Loans,
as the case may be. Upon any such prepayment or conversion, each applicable
Borrower shall also pay accrued interest on the amount so prepaid or converted.
Each Lender agrees to designate a different Lending Office if such designation
will avoid the need for such notice and will not, in the good faith judgment of
such Lender, otherwise be materially disadvantageous to such Lender.
5.03 INABILITY TO DETERMINE RATES.
(a) If the US Required Lenders determine that for any reason
adequate and reasonable means do not exist for determining the US Dollar
Eurodollar Rate for any requested Interest Period with respect to a proposed US
Eurodollar Rate Committed Loan, or that the US Dollar Eurodollar Rate for any
requested Interest Period with respect to a proposed US Eurodollar Rate
Committed Loan does not adequately and fairly reflect the cost to such Lenders
of funding such Loan, the Administrative Agent will promptly so notify the US
Borrower and each Lender. Thereafter, the obligation of the Lenders to make or
maintain US Dollar Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the US Required Lenders) revokes
such notice. Upon receipt of such notice, the US Borrower may revoke any pending
request for a US Borrowing of, conversion to or continuation of US Eurodollar
Rate Committed Loans or, failing that, will be deemed to have converted such
request into a request for a US Committed Borrowing of US Base Rate Loans in the
amount specified therein.
(b) If the Canadian Required Lenders determine that for any reason
adequate and reasonable means do not exist for determining the US Dollar
Eurodollar Rate or the Canadian Dollar Eurodollar Rate for any requested
Interest Period with respect to a proposed Canadian Eurodollar Rate Committed
Loan, or that the US Dollar Eurodollar Rate or the Canadian Dollar Eurodollar
Rate for any requested Interest Period with respect to a proposed Canadian
Committed Loan does not adequately and fairly reflect the cost to such Canadian
Lenders of funding such Loan, the Administrative Agent will promptly so notify
each Canadian Borrower and each Canadian Lender. Thereafter, the obligation of
the Canadian Lenders to make or maintain Canadian Dollar Eurodollar Rate Loans
and Canadian US Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Canadian Required Lenders)
revokes such notice. Upon receipt of such notice, any Canadian Borrower may
revoke any pending request for a Canadian Borrowing of, conversion to or
continuation of such Canadian Committed Loans or, failing that, will be deemed
to have converted such request into a
DEVON CREDIT AGREEMENT
90
request for a Canadian Committed Borrowing of Canadian Base Rate Committed Loans
or Canadian Prime Rate Committed Loans in the amount specified therein.
5.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY; RESERVES
ON US DOLLAR EURODOLLAR RATE LOANS, CANADIAN DOLLAR EURODOLLAR RATE LOANS, AND
CANADIAN US EURODOLLAR RATE COMMITTED LOANS.
(a) If any Lender determines that as a result of a Change in Law,
or such Lender's compliance therewith, there shall be any increase in the cost
to such Lender of agreeing to make or making, funding or maintaining US DOLLAR
EURODOLLAR RATE LOANS, Canadian Dollar Eurodollar Rate Loans, or Canadian US
Eurodollar Rate Committed Loans or (as the case may be) issuing or participating
in Letters of Credit, or a reduction in the amount received or receivable by
such Lender in connection with any of the foregoing (excluding for purposes of
this subsection (a) any such increased costs or reduction in amount resulting
from (i) Taxes or Other Taxes (as to which Section 5.01 shall govern), (ii)
changes in the basis of taxation of, or in the rate or amount of taxes imposed
on or measured by reference to, overall net income or franchise taxes (in lieu
of net income taxes), or overall gross income by the United States or Canada or
any other foreign jurisdiction or any political subdivision of either thereof
under the Laws of which such Lender is organized or maintains a Lending Office,
and (iii) reserve requirements contemplated by Section 5.04(c)), then from time
to time within 20 days following delivery by such Lender of a certificate
described in Section 5.06 (with a copy of such demand to the Administrative
Agent), each applicable Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such increased cost or reduction.
(b) If any Lender determines that a Change in Law regarding
capital adequacy or compliance by such Lender (or its Lending Office) therewith,
has the effect of reducing the rate of return on the capital of such Lender or
any corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender's desired return on capital), then from time to
time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), each applicable Borrower shall pay to such Lender such
additional amounts as will compensate such Lender for such reduction.
(c) The US Borrower shall pay to each Lender, and the applicable
Canadian Borrower shall pay to each Canadian Lender, as long as such Lender
shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional interest on the unpaid principal amount
of each US Dollar Eurodollar Rate Loan or Canadian Dollar Eurodollar Rate Loan,
as applicable, equal to the actual costs of such reserves allocated to such Loan
by such Lender (as determined by such Lender in good faith, which determination
shall be conclusive), which shall be due and payable on each date on which
interest is payable on such Loan, provided the applicable Borrower shall have
received at least 15 days' prior notice (with a copy to the Administrative
Agent) of such additional interest from such Lender. If a Lender fails to give
notice 15 days prior to the relevant Interest Payment Date, such additional
interest shall be due and payable 15 days from receipt of such notice.
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5.05 COMPENSATION FOR LOSSES. Within 20 days following delivery by
any Lender of a certificate described in Section 5.06, upon demand of such
Lender (with a copy to the Administrative Agent) from time to time, each
applicable Borrower shall promptly compensate such Lender for and hold such
Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any
Loan other than a US Base Rate Loan, a Canadian Prime Rate Committed Loan or a
Canadian Base Rate Committed Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise); or
(b) any failure by the applicable Borrower (for a reason other
than the failure of such Lender to make a Loan) to prepay, borrow, continue or
convert any Loan other than a US Base Rate Loan, a Canadian Prime Rate Loan or a
Canadian Base Rate Committed Loan, as the case may be, on the date or in the
amount notified by the applicable Borrower; or
(c) any assignment of a US Dollar Eurodollar Rate Loan or a
Canadian Dollar Eurodollar Rate Loan or a Canadian US Eurodollar Rate Committed
Loan, as the case may be, on a day other than the last day of the Interest
Period therefor as a result of a request by the applicable Borrower pursuant to
Section 12.17;
excluding any loss of anticipated profits but including any actual loss or
expense arising from the liquidation or reemployment of funds obtained by it to
maintain such Loan or from fees payable to terminate the deposits from which
such funds were obtained.
5.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
A certificate of the Administrative Agent or any Lender claiming
compensation under this Article V and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods. The applicable
Borrower may reasonably request copies of documentation supporting such methods.
Upon any Lender's making a claim for compensation under Section 5.01 or
5.04, the US Borrower may replace such Lender in accordance with Section 12.17.
Notwithstanding any other provision of this Agreement to the contrary,
no Borrower shall be under any obligation to compensate the Administrative Agent
or any Lender under Sections 5.01, 5.04 or 5.05 with respect to any request to
be compensated for any losses, costs, expenses or other amounts relating to any
period prior to the date that is 180 days prior to such request if such Lender
or the Administrative Agent, as the case may be, knew of the circumstances
giving rise to such losses, costs, expenses or amounts.
5.07 SURVIVAL. All of the Borrowers' obligations under this Article
V shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
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ARTICLE VI.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
6.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each
Lender to make its initial Credit Extension hereunder is subject to satisfaction
of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of
which shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent and each of the
Lenders:
(i) executed counterparts of this Agreement and the
Guaranties, sufficient in number for distribution to the Administrative
Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower, as applicable in
favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party as the Administrative Agent may reasonably
require evidencing the identity, authority and capacity of each
Responsible Officer thereof authorized to act as a Responsible Officer
in connection with this Agreement and the other Loan Documents to which
such Loan Party is a party;
(iv) such documents and certificates as the Administrative
Agent may reasonably require to evidence that each Loan Party is duly
organized or formed, validly existing and in good standing issued by
appropriate public officials of the jurisdiction of such Loan Party's
organization or formation;
(v) favorable opinions of (i) Mayer, Brown, Xxxx and Maw,
counsel to the Loan Parties, (ii) Xxxxxxx Xxxxx LLP, counsel to the
Canadian Borrowers, and (iii) Xxxxxxx XxXxxxxx Stirling Scales, counsel
to Devon Financing ULC, in each case addressed to the Administrative
Agent and each Lender, as to the matters set forth in Exhibit H, as
applicable, and such other matters concerning the Loan Parties and the
Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the
US Borrower certifying (A) that the conditions specified in Sections
6.02(a) and (b) have been satisfied, (B) that there has been no event
or circumstance since the date of the Audited Financial Statements that
has had or could be reasonably expected to have, either individually or
in the aggregate, a Material Adverse Effect; and (C) the current Debt
Ratings; and
(vii) a duly completed Compliance Certificate as of
December 31, 2003, signed by a Responsible Officer of the US Borrower.
DEVON CREDIT AGREEMENT
93
(b) Any fees required to be paid on or before the Closing Date
shall have been paid.
(c) All indebtedness and obligations of the US Borrower under the
Existing US Credit Agreement and the Canadian Borrowers under the Existing
Canadian Credit Agreement shall be paid on the Closing Date and the Existing US
Credit Agreement and the Existing Canadian Credit Agreement shall be terminated
on the Closing Date.
(d) Unless waived by the Administrative Agent, the Borrowers shall
have paid all reasonable and documented Attorney Costs of the Administrative
Agent to the extent invoiced prior to or on the Closing Date, plus such
additional amounts of Attorney Costs as shall constitute its reasonable estimate
of Attorney Costs incurred or to be incurred by it through the closing
proceedings; provided that such estimate shall not thereafter preclude a final
settling of accounts between the Borrowers and the Administrative Agent; and
provided further that, as used in this Section 6.01(d), "Attorney Costs" shall
include (i) all fees, expenses and disbursements of only one law firm
constituting U.S. counsel to the Administrative Agent, and (ii) all fees,
expenses and disbursements of only one law firm constituting Canadian counsel to
the Administrative Agent.
6.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligations (i) of
each Lender to honor any Request for Credit Extension (other than a Committed
Loan Notice requesting only a conversion of Committed Loans to the other Type or
a continuation of Loans) are subject to the following conditions precedent:
(a) The representations and warranties of each Borrower and each
other Loan Party contained in Article VII or any other Loan Document, or which
are contained in any document furnished at any time under or in connection
herewith or therewith, shall be true and correct in all material respects on and
as of the date of such US Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct in all material respects as of such earlier
date.
(b) No Default shall exist, or would result from such proposed
Credit Extension.
(c) The Administrative Agent and the applicable L/C Issuer or US
Swing Line Lender or Canadian Swing Line Lender (as applicable) shall have
received a Request for US Credit Extension or Request for Canadian Credit
Extension, as the case may be, in accordance with the requirements hereof.
Each Request for US Credit Extension and Request for Canadian Credit Extension
(other than (i) a US Committed Loan Notice requesting only a conversion of US
Committed Loans to the other Type or a continuation of US Eurodollar Rate
Committed Loans or (ii) a Canadian Committed Borrowing Notice requesting only a
conversion of Canadian Committed Loans to the other Type or a continuation of
Canadian Eurodollar Rate Committed Loans) submitted by any Borrower shall be
deemed to be a representation and warranty that the conditions specified in
Sections 6.02(a) and (b) have been satisfied on and as of the date of the
applicable Credit Extension.
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94
ARTICLE VII.
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 with respect to the
following matters applicable to it and its Subsidiaries that, and the US
Borrower represents and warrants to each Lender with respect to all of the
following matters that:
7.01 NO DEFAULT. No event has occurred and is continuing which
constitutes a Default.
7.02 ORGANIZATION AND GOOD STANDING. Each Restricted Person is duly
organized, validly existing and in good standing under the Laws of its
jurisdiction of organization, having all powers required to carry on its
business and enter into and carry out the transactions contemplated hereby. Each
Restricted Person is duly qualified, in good standing, and authorized to do
business in all other jurisdictions within the United States or 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 Restricted
Person has taken all actions and procedures customarily taken in order to enter,
for the purpose of conducting business or owning property, each jurisdiction
outside the United States or 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.
7.03 AUTHORIZATION. Each Borrower has duly taken all action
necessary to authorize the execution and delivery by it of the 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. The
Borrowers are duly authorized to make Borrowings and request Letters of Credit
hereunder.
7.04 NO CONFLICTS OR CONSENTS. The execution and delivery by the
various Restricted Persons of the Loan Documents to which each is a party, the
performance by each of its obligations under such Loan Documents, and the
consummation of the transactions contemplated by the various Loan Documents, do
not and will not conflict with any provision of (A) any Law, (B) the
Organizational Documents 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 result in the acceleration of any Indebtedness owed by any
Restricted Person which would reasonably be expected to have a Material Adverse
Effect, or 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
Loan Documents. Except as expressly contemplated in the Loan Documents no
consent, approval, authorization or order of, and no notice to or filing with,
any Governmental Authority or third party is required in connection with the
execution, delivery or performance by any Restricted Person of any Loan Document
or to consummate any transactions contemplated by the Loan Documents, unless
DEVON CREDIT AGREEMENT
95
failure to obtain such consent would not reasonably be expected to have a
Material Adverse Effect.
7.05 ENFORCEABLE OBLIGATIONS. This Agreement is, and the other 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 applicable Debtor Relief Laws.
7.06 FULL DISCLOSURE. No certificate, statement or other
information delivered herewith or heretofore by any 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 when taken together with all reports, statements, schedules and
other information included in filings made by the US Borrower and its
Subsidiaries with the SEC (collectively, "SEC Filings") omits to state any
material fact known to any Restricted 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
Restricted Person (other than industry-wide risks normally associated with the
types of businesses conducted by Restricted Persons) that has not been disclosed
in the SEC Filings or a Disclosure Report to each Lender in writing which would
reasonably be expected to have a Material Adverse Effect.
7.07 LITIGATION. Except as disclosed in the SEC Filings or in the
Disclosure Schedule or a Disclosure Report there are no actions, suits or legal,
equitable, arbitrative or administrative proceedings pending, or to the
knowledge of any Restricted Person threatened, against any Restricted Person
before any Governmental Authority 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 Governmental Authority against any
Restricted Person which would reasonably be expected to have a Material Adverse
Effect.
7.08 ERISA PLANS AND LIABILITIES.
All currently existing ERISA Plans and Multiemployer Plans are listed
in the Disclosure Schedule. Except as disclosed in the Disclosure Schedule, in
the SEC Filings or a Disclosure Report, no Termination Event when taken together
with all other Termination Events, would reasonably be expected to have a
Material Adverse Effect. Except as set forth in Schedule 7.08 or in the Annual
Report on Form 10K or the Quarterly Report on Form 10Q of US Borrower filed with
the SEC, (i) no "accumulated funding deficiency" (as defined in Section 412(a)
of the Internal Revenue Code) exists with respect to any ERISA Plan, whether or
not waived by the Secretary of the Treasury or his delegate, (ii) the total
amount of withdrawal liability that would be incurred by all ERISA Affiliates
upon their complete withdrawal from all Multiemployer Plans would not reasonably
be expected to exceed the Threshold Amount, and (iii) the total present value of
all unfunded benefit liabilities within the meaning of Title IV of ERISA of all
ERISA Plans (based upon the actuarial assumptions used to fund each such Plan)
did not, as of the respective annual valuation dates for the most recently ended
plan year of each such Plan, exceed the Threshold Amount.
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7.09 ENVIRONMENTAL AND OTHER LAWS. Except as disclosed in the
Disclosure Schedule, Restricted Persons 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; none of the operations or properties of any Restricted
Person is the subject of federal, state 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 no Restricted Person (and to the best knowledge of
Borrowers, no other Person) has filed any notice under any Law indicating that
any Restricted 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
Restricted Person, unless such failure to so comply would not reasonably be
expected to have a Material Adverse Effect.
7.10 MATERIAL SUBSIDIARIES. As of the date hereof: US Borrower does
not have any Material Subsidiary except those listed in the Disclosure Schedule,
and US Borrower owns, directly or indirectly, the equity interest in each of its
Material Subsidiaries which is indicated in the Disclosure Schedule.
7.11 TITLE TO PROPERTIES; LICENSES. Each 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
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 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.
7.12 GOVERNMENT REGULATION. No Restricted Person owing Obligations
(i) is a "holding company," or a "subsidiary company" of a "holding company," or
an "affiliate" of a holding company" or a "subsidiary company" of a "holding
company" within the meaning of the Public Utility Holding Company Act of 1935,
or (ii) is or is required to be registered as an "investment company" under the
Investment Company Act of 1940.
7.13 SOLVENCY. Upon giving effect to the issuance of the Notes, the
execution of each Loan Document by each Borrower and the consummation of the
transactions contemplated hereby, each Borrower will be solvent (as such term is
used in applicable bankruptcy, liquidation, receivership, insolvency or similar
Laws).
7.14 MARGIN STOCK. No Borrower is engaged or will engage,
principally or as one of its important activities, in the business of purchasing
or carrying margin stock (within the
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meaning of Regulation U issued by the FRB), or extending credit for the purpose
of purchasing or carrying margin stock.
ARTICLE VIII.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder or any Loan
or interest thereon or fee owed hereunder shall remain unpaid or unsatisfied, or
any Letter of Credit or L/C Obligation shall remain outstanding, each Canadian
Borrower shall and the US Borrower shall, and shall cause each applicable
Restricted Subsidiary to comply with the following covenants:
8.01 PAYMENT AND PERFORMANCE. Each Borrower will pay all amounts
due and payable by such Borrower under the Loan Documents in accordance with the
terms thereof and will observe, perform and comply with every covenant and term
in the Loan Documents applicable to it. The US Borrower will cause each other
Restricted Person to observe, perform and comply with every such term and
covenant in any Loan Document applicable to it.
8.02 BOOKS, FINANCIAL STATEMENTS AND REPORTS. Each Restricted
Person will at all times maintain full and accurate books of account and
records. The US Borrower will maintain its Fiscal Year, and will furnish the
following statements and reports to Administrative Agent at the US Borrower's
expense:
(a) Within five (5) Business Days of being filed with the SEC, and
in any event within ninety (90) days after the end of each Fiscal Year, complete
consolidated financial statements of the US Borrower together with all notes
thereto, prepared in reasonable detail in accordance with 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 the US Borrower and acceptable to Administrative 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, together with each such set of financial statements, the US Borrower
will furnish to Administrative Agent a Compliance Certificate signed by a
Responsible Officer of the US Borrower, stating that such financial statements
are accurate and complete, stating that such Person has reviewed or caused to be
reviewed the Loan Documents, containing all calculations required to be made to
show compliance or non-compliance with the provisions of Section 9.07, 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 or, if a
Default exists, specifying the nature and period of existence of any such
condition or event.
(b) Within five (5) Business Days of being filed with the SEC, and
in any event within forty-five (45) days after the end of each Fiscal Quarter,
the 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
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GAAP, subject to changes resulting from normal year-end adjustments. In addition
the US Borrower will, together with each such set of financial statements,
furnish a Compliance Certificate signed by a Responsible Officer of the US
Borrower stating that such financial statements are accurate and complete
(subject to normal year-end adjustments), stating that such Person has reviewed
or caused to be reviewed the Loan Documents, containing all calculations
required to be made by the US Borrower to show compliance or non-compliance with
the provisions of Section 9.07 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 or if a Default exists, 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 the US
Borrower to its stockholders and all registration statements, periodic reports
and other statements and schedules filed by the US Borrower with any securities
exchange, the SEC or any similar Governmental Authority, including any
information or estimates with respect to the US Borrower's oil and gas business
(including its exploration, development and production activities) which are
required to be furnished in the US Borrower's annual report pursuant to Sections
13 or 15(d) of the Securities Exchange Act of 1934, as amended.
Documents required to be delivered pursuant to this Section 8.02 (to
the extent any such documents are included in materials otherwise filed with the
SEC) may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (i) on which the US Borrower posts such
documents, or provides a link thereto on the US Borrower's website on the
Internet at the website address listed on Schedule 12.02; or (ii) on which such
documents are posted on the US Borrower's behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: (i) the US Borrower shall deliver paper
copies of such documents to the Administrative Agent or any Lender that requests
the US Borrower to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and
(ii) the US Borrower shall notify (which may be by facsimile or electronic mail)
the Administrative Agent and each Lender of the posting of any such documents
and provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. Notwithstanding anything contained
herein, in every instance the US Borrower shall be required to provide paper
copies of the Compliance Certificates required by this Section 8.02 to the
Administrative Agent. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the US Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.
8.03 OTHER INFORMATION AND INSPECTIONS. Each Restricted Person will
furnish to each Lender any information which Administrative 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 Restricted Person will permit representatives appointed by
Administrative Agent (including independent accountants, auditors,
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agents, and attorneys to visit and inspect upon prior written notice during
normal business hours, at the Administrative Agent's expense (except during the
continuance of an Event of Default), 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 Restricted Person shall permit Administrative
Agent or its representatives to investigate and verify the accuracy of the
information furnished to Administrative Agent or any Lender in connection with
the Loan Documents and to discuss all such matters with its officers, employees
and representatives.
8.04 NOTICE OF MATERIAL EVENTS. Each Borrower 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 for
borrowed money owed by any Restricted Person having a principal balance of more
than US $150,000,000, or of any default by any Restricted 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 the Threshold Amount, or (ii) the aggregate amount
of unfunded liabilities with respect to ERISA Plans to exceed the Threshold
Amount,
(e) any claim equal to or greater than the Threshold Amount, any
notice of potential liability under any Environmental Laws which might exceed
such amount, or any other material adverse claim asserted against any Restricted
Person or with respect to any Restricted Person's properties,
(f) the filing of any suit or proceeding against any Restricted
Person in which an adverse decision would reasonably be expected to have a
Material Adverse Effect, and
(g) any announcement by Moody's or S&P of any change in the Debt
Rating.
8.05 MAINTENANCE OF PROPERTIES. Each 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.
8.06 MAINTENANCE OF EXISTENCE AND QUALIFICATIONS. Subject to
Section 9.04, each Restricted Person will maintain and preserve its existence
and its rights and franchises in full
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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.
8.07 PAYMENT OF TAXES, ETC. Each Restricted Person will timely file
all required tax returns; timely pay all taxes, assessments, and other
governmental charges or levies imposed upon it or upon its income, profits or
property; and maintain appropriate accruals and reserves for all of the
foregoing in accordance with GAAP. Each 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.
8.08 INSURANCE. Each 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.
8.09 COMPLIANCE WITH LAW. Each 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.
8.10 ENVIRONMENTAL MATTERS.
(a) Each 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 Borrower will promptly furnish to Administrative Agent
all written notices of violation, orders, claims, citations, complaints, penalty
assessments, suits or other proceedings received by such Borrower, or of which
it has notice, pending or threatened against any Restricted Person, 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 the Threshold Amount.
8.11 USE OF PROCEEDS. Each Borrower shall use the proceeds of the
Credit Extensions for general corporate purposes not in contravention of any Law
or of any Loan Document, including without limitation, the refinancing of (a)
all existing indebtedness and obligations of the US Borrower under the Existing
US Credit Agreement, and (b) all existing indebtedness and obligations of
Canadian Borrowers under the Existing Canadian Credit Agreement. If proceeds of
the Credit Extensions are used for a purpose which is governed by Reg U,
Borrowers shall comply with Reg U in all respects.
8.12 ADDITIONAL GUARANTORS. At its option, the US Borrower may
designate any Domestic Subsidiary as a Guarantor by giving the Administrative
Agent revocable written notice
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thereof, and promptly after such notification (and in any event within ten (10)
Business Days), cause such Domestic Subsidiary to (a) become a Guarantor by
executing and delivering to the Administrative Agent a guaranty substantially in
the form of the US Guaranty or such other document as the Administrative Agent
shall deem appropriate for such purpose, and (b) deliver to the Administrative
Agent, with respect to such Guarantor, documents of the types referred to in
clauses (iii) and (iv) of Section 6.01(a) and favorable opinions of counsel to
such Person (which shall cover, among other things, the legality, validity,
binding effect and enforceability of the documentation referred to in the
preceding clause (a)), all in form, content and scope reasonably satisfactory to
the Administrative Agent.
ARTICLE IX.
NEGATIVE COVENANTS OF BORROWERS
So long as any Lender shall have any Commitment hereunder, any Loan or
interest thereon or any fee hereunder shall remain unpaid or unsatisfied, or any
Letter of Credit or Letter of Credit Obligation shall remain outstanding, the US
Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly
or indirectly:
9.01 INDEBTEDNESS. No Restricted Subsidiary will in any manner owe
or be liable for Indebtedness except:
(a) the Obligations.
(b) capital lease obligations (excluding oil, gas or mineral
leases) entered into in the ordinary course of such Restricted Subsidiary'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.
(c) unsecured Indebtedness owed among the US Borrower and its
Subsidiaries, excluding any Indebtedness owed by a Restricted Subsidiary to an
Unrestricted Subsidiary that has been transferred, assigned or pledged to a
Person other than the US Borrower or a Subsidiary of the US Borrower; provided
that Indebtedness owed by any such Subsidiary (other than Canadian Borrowers) to
the US Borrower may be secured by any and all assets of such Subsidiary.
(d) guaranties by one Restricted Subsidiary of liabilities owed by
another Restricted Person, if such liabilities either are not Indebtedness, or
are allowed under subsections (a), (b) or (c) of this Section 9.01.
(e) Indebtedness of the Restricted Subsidiaries for plugging and
abandonment bonds or for letters of credit issued in place thereof which are
required by regulatory authorities in the area of operations, and Indebtedness
of the Restricted Subsidiaries for other bonds or letters of credit which are
required by such regulatory authorities with respect to other normal oil and gas
operations.
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(f) non-recourse Indebtedness as to which no Restricted Person
provides any guaranty or credit support of any kind (including any undertaking,
guarantee, indemnity, agreement or instrument that would constitute
Indebtedness) or is directly or indirectly liable (as a guarantor or otherwise);
provided, that after giving effect to such Indebtedness outstanding from time to
time, the US Borrower is not in violation of Section 9.07.
(g) Indebtedness of a Canadian Borrower or Guarantor that is
subordinated to the Obligations of such Canadian Borrower or Guarantor on terms
which, in the reasonable opinion of the Administrative Agent, are customary for
such Indebtedness or are otherwise acceptable.
(h) Acquired Debt.
(i) Indebtedness under Swap Contracts.
(j) Indebtedness relating to the surety bond and letter of credit
obligations (including replacements thereof) listed on the Disclosure Schedule
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
the Disclosure Schedule and replacements thereof) incurred in the ordinary
course of business not to exceed 2% of Consolidated Assets at any time.
(k) Indebtedness arising under the Devon Trust Securities.
(l) Indebtedness owed by Devon Financing ULC, including
Indebtedness of Devon Financing ULC with respect to guaranties of Indebtedness
of the US Borrower, to the extent the US Borrower is in compliance with the
terms of Section 9.07 at the time such guaranties are executed and delivered,
provided that in each case, the Devon Financing ULC Guaranties remain valid,
binding and enforceable obligations of Devon Financing ULC or, if any Devon
Financing ULC Guaranties have been terminated, replacement guaranty agreements
on the same terms are executed by Devon Financing ULC and delivered to
Administrative Agent, pursuant to this Agreement (along with documents with
respect to Devon Financing ULC similar to those specified in clauses (iii) and
(iv) of Section 6.01(a)).
(m) Indebtedness outstanding on the Closing Date or thereafter
incurred pursuant to funding commitments in existence on the Closing Date and
listed in the Disclosure Schedule, 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 (except for the purpose
of paying any prepayment premium or any fees and expenses incurred in connection
with such extension, renewal, restructuring, refinancing or replacement ) the
aggregate principal amount thereof for which such Restricted Subsidiary (or any
other Restricted Subsidiary) is then or may thereafter become liable.
(n) Indebtedness of Restricted Subsidiaries that are Guarantors to
the extent the US Borrower is in compliance with the terms of Section 9.07 at
the time such Indebtedness is incurred.
(o) miscellaneous items of Indebtedness of all Restricted
Subsidiaries not otherwise permitted in subsections (a) through (n) which do not
exceed at any one time an aggregate
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outstanding amount equal to the greater of US $800,000,000 and five percent (5%)
of Consolidated Net Worth determined as of the end of the most recent Fiscal
Quarter.
9.02 LIMITATION ON LIENS. Except for Permitted Liens, no 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.
9.03 FUNDAMENTAL CHANGES. The US Borrower shall not consolidate
with or merge or amalgamate with or into any other Person or convey, transfer or
lease its properties and assets substantially as an entirety to any Person
unless:
(a) (i) in the case of a merger or amalgamation, the US
Borrower is the surviving entity; or
(ii) the Person formed by such consolidation or into which
the US Borrower is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the US Borrower
substantially as an entirety shall be a corporation, partnership,
limited liability company or trust, shall be organized and existing
under the laws of the United States of America, any state thereof or
the District of Columbia, shall have non-credit enhanced, senior
unsecured long-term Indebtedness rated "investment grade" by S&P or
Moody's (or, in the event the US Borrower did not have non-credit
enhanced, senior unsecured long-term Indebtedness rated "investment
grade" by S&P or Moody's immediately preceding such transaction, such
Person shall have non-credit enhanced, senior unsecured long-term
Indebtedness that is not rated lower by S&P or Moody's than S&P's or
Moody's ratings, respectively, of the US Borrower's non-credit
enhanced, senior unsecured long-term Indebtedness immediately preceding
such transaction), and shall expressly assume, by an agreement
supplemental hereto, executed and delivered to the Administrative
Agent, in form reasonably satisfactory to the Administrative Agent, the
obligations of the US Borrower hereunder, including the due and
punctual payment of the principal of and interest on all the US Loans,
the US L/C Obligations, the Canadian Guaranty and the performance of
every covenant of this Agreement on the part of the US Borrower to be
performed or observed; and
(b) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing.
9.04 FUNDAMENTAL CHANGES OF CANADIAN BORROWERS. No Canadian
Borrower shall consolidate with or merge or amalgamate with or into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person unless:
(a) (i) in the case of a merger or amalgamation, a Canadian
Borrower is the surviving entity; or
(ii) all Canadian Obligations of such Canadian Borrower
shall have been paid in full and the obligations of the Canadian
Lenders to make Canadian Credit Extensions to such Canadian Borrower
shall have been terminated; or
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(iii) the Person formed by such consolidation or the Person
continuing from such merger or amalgamation of such Canadian Borrower
or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of such Canadian Borrower
substantially as an entirety shall be a corporation, unlimited
liability company, partnership or trust, shall be organized and
existing under the laws of Canada or any province thereof, and shall
assume by operation of law or expressly assume, by an agreement
supplemental hereto, executed and delivered to the Administrative
Agent, in form reasonably satisfactory to the Administrative Agent, the
Canadian Obligations of such Canadian Borrower, including the due and
punctual payment of the principal of and interest on all of the
Canadian Loans and all Canadian LC Obligations and the performance of
every covenant of this Agreement on the part of such Canadian Borrower
to be performed or observed and the US Borrower shall confirm that its
Canadian Guaranty covers such obligations; and
(b) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing.
9.05 TRANSACTIONS WITH AFFILIATES. No 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
the US Borrower and its Subsidiaries (including such transactions among such
Subsidiaries).
9.06 PROHIBITED CONTRACTS. Except as expressly provided for in the
Loan Documents, the Support Agreement dated December 10, 1998 between the US
Borrower and Northstar Energy, the Santa Fe Snyder Indentures, and documents and
instruments evidencing or governing Indebtedness (or commitments with respect
thereto) listed on Schedule 9.01 or Acquired Debt, no Restricted Person will,
directly or indirectly, enter into any Contractual Obligation (other than this
Agreement or any other Loan Document) that limits the ability of any Subsidiary
to make Restricted Payments to such Borrower or otherwise to transfer property
to such Borrower, other than any limitation which would not be reasonably
expected to materially impair the ability of such Borrower to perform its
monetary obligations hereunder.
9.07 FUNDED DEBT TO TOTAL CAPITALIZATION. The ratio of the US
Borrower's Consolidated Total Funded Debt to the US Borrower's Total
Capitalization will not exceed sixty-five percent (65%) at the end of any Fiscal
Quarter.
9.08 DEVON TRUST; DEVON TRUST SECURITIES. Devon Trust is a
Restricted Person and shall exist for the exclusive purposes of issuing the
Devon Trust Securities, investing the gross proceeds of the Devon Trust
Securities in the Subordinated US Borrower Debentures and engaging in only those
other activities necessary or incidental thereto. The US Borrower shall exercise
its option to defer interest payments on the Subordinated US Borrower Debentures
rather than default on such interest payments. Devon Trust shall not redeem the
Devon Trust Securities prior to their stated maturity, and the US Borrower shall
not prepay or redeem the Subordinated the US Borrower Debentures prior to their
stated maturity, unless both immediately before and immediately after any such
proposed prepayment or redemption, the US
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Borrower is in compliance with Section 9.07 and no Default or Event of Default
under Section 10.01(a), (f) or (h) is continuing.
ARTICLE X.
EVENTS OF DEFAULT AND REMEDIES
10.01 EVENTS OF DEFAULT. Each of the following events constitutes an
Event of Default under this Agreement:
(a) Any Borrower or any Guarantor fails to pay any principal
component of any Obligation payable by it when due and payable or fails to pay
any interest thereon or fee payable by it within three (3) Business Days after
the date when due and payable or fails to pay any other Obligation within ten
(10) Business 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 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 8.11 of this
Agreement or (ii) duly observe, perform or comply with any other covenant,
agreement, condition or provision of any Loan Document, and such failure remains
unremedied for a period of thirty (30) days after notice of such failure is
given by Administrative Agent to the US Borrower;
(d) Any representation or warranty previously, presently or
hereafter made in writing by or on behalf of any Restricted Person in connection
with any 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, the US Borrower shall (subject to the other provisions of this
Section 10.01) have a period of 30 days after written notice thereof has been
given to the US Borrower by Administrative Agent within which to remedy or cure
such falsity or lack of correctness; or this Agreement, any Note, or Guaranty
executed by any Guarantor is asserted to be or at any time ceases to be valid,
binding and enforceable in any material respect as warranted in Section 7.05 for
any reason other than its release or subordination by Administrative Agent;
(e) Any Restricted Person (i) 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 under this clause (ii) results in
the acceleration of such Indebtedness; provided that 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
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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 US 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) Either of the following occurs: (i) a Termination Event occurs
and the total amount of withdrawal liability that would be incurred by all ERISA
Affiliates upon their complete withdrawal from all Multiemployer Plans would
reasonably be expected to exceed the Threshold Amount, or (ii) a Termination
Event occurs and the total present value of all unfunded benefit liabilities
within the meaning of Title IV of ERISA of all ERISA Plans (based upon the
actuarial assumptions used to fund each such Plan) would reasonably be expected
to exceed the Threshold Amount;
(g) Any Change of Control occurs;
(h) Any Borrower, any Guarantor or any other Restricted Person
having assets with a book value equal to or greater than the Threshold Amount:
(i) institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment for the
benefit of creditors; or applies for or consents to the appointment of
any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part
of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under
any Debtor Relief Law relating to any such Person or to all or any
material part of its property having a book value equal to or greater
than the Threshold Amount is instituted without the consent of such
Person and continues undismissed or unstayed for 60 calendar days, or
an order for relief is entered in any such proceeding; or
(ii) becomes unable or admits in writing its inability or
fails generally to pay its debts as they become due; or
(iii) suffers a writ or warrant of attachment or similar
process to be issued by any Governmental Authority against all or any
part of its property having a book value equal to or greater than the
Threshold Amount, and such writ or warrant of attachment or any similar
process is not stayed or released within 30 days after the entry or
levy thereof or after any stay is vacated or set aside; or
(iv) there is entered against any such Person a final
judgment or order for the payment of money in an aggregate 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 the Threshold Amount 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.
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10.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs
and is continuing, the Administrative Agent shall, at the request of, or may,
with the consent of, the Required Lenders, take any or all of the following
actions:
(a) declare the commitment of each Lender to make Loans or accept
Bankers' Acceptances and any obligation of the L/C Issuer to make L/C Credit
Extensions to be terminated, whereupon such commitments and obligation shall be
terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by each Borrower;
(c) require that the applicable Borrower Cash Collateralize the
L/C Obligations and Bankers' Acceptances issued or owing by it (in an amount
equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
Law;
provided however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the US Borrower under the Bankruptcy Code of
the United States, the obligation of each Lender to make Loans or accept
Bankers' Acceptances and any obligation of the L/C Issuer to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable, and the obligation of the applicable
Borrower to Cash Collateralize the L/C Obligations and Bankers' Acceptances
issued or owing by it as aforesaid shall automatically become effective, in each
case without further act of the Administrative Agent or any Lender; and provided
further that upon the occurrence of an actual or deemed entry of an order for
relief with respect to any Canadian Borrower under the applicable Debtor Relief
Laws, the obligation of each Canadian Lender to make Canadian Loans or accept
Bankers' Acceptances and any obligation of the Canadian L/C Issuer to make
Canadian L/C Credit Extensions to such Canadian Borrower shall automatically
terminate, the unpaid principal amount of all outstanding Canadian Borrowings
and all interest and other amounts as aforesaid shall automatically become due
and payable, and the obligation of such Canadian Borrower to Cash Collateralize
the Canadian L/C Obligations and Bankers' Acceptances issued or owing by it as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Canadian Lender.
10.03 APPLICATION OF FUNDS RECEIVED FROM THE CANADIAN BORROWERS.
After the exercise of remedies provided for in Section 10.02 (or after the Loans
have automatically become immediately due and payable and the Canadian L/C
Obligations and Bankers' Acceptances have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 10.02), any amounts
received on account of the Canadian Obligations shall be applied by the
Administrative Agent in the following order:
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First, to payment of that portion of the Canadian Obligations
constituting fees, indemnities, expenses and other amounts (including Attorney
Costs and amounts payable under Article V) payable to the Administrative Agent
in its capacity as such;
Second, to payment of that portion of the Canadian Obligations
constituting fees, indemnities and other amounts (other than principal and
interest) payable to the Canadian Lenders (including Attorney Costs and amounts
payable under Article V), ratably among them in proportion to the amounts
described in this clause Second payable to them;
Third, to payment of that portion of the Canadian Obligations
constituting accrued and unpaid interest on the Canadian Loans and Canadian L/C
Borrowings, ratably among the Canadian Lenders in proportion to the respective
amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Canadian Obligations
constituting unpaid principal of the Canadian Loans and Canadian L/C Borrowings,
ratably among the Canadian Lenders in proportion to the respective amounts
described in this clause Fourth held by them;
Fifth, to the Administrative Agent for the Account of the Canadian
Lenders to Cash Collateralize the outstanding Bankers' Acceptances; and
Sixth, to the Administrative Agent for the account of the Canadian L/C
Issuer, to Cash Collateralize that portion of Canadian L/C Obligations comprised
of the aggregate undrawn amount of Canadian Letters of Credit;
Last, the balance, if any, after all of the Canadian Obligations have
been paid in full, to the Canadian Borrowers or as otherwise required by Law.
Subject to Section 2.04(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Canadian Letters of Credit and the outstanding Bankers'
Acceptances pursuant to clause Fifth and Sixth above shall be applied to satisfy
drawings under such Canadian Letters of Credit as they occur. If any amount
remains on deposit as Cash Collateral after all Canadian Letters of Credit and
Bankers' Acceptances have been paid, fully drawn or expired, such remaining
amount shall be applied to the other Canadian Obligations, if any, in the order
set forth above.
10.04 APPLICATION OF FUNDS RECEIVED FROM THE US BORROWER. After the
exercise of remedies provided for in Section 10.02 (or after the Loans have
automatically become immediately due and payable and the US L/C Obligations have
automatically been required to be Cash Collateralized as set forth in the
proviso to Section 10.02), any amounts received on account of the US Obligations
and on account of the Canadian Obligations under the US Borrower Guaranty shall
be applied by the Administrative Agent in the following order:
First, to payment of that portion of the US Obligations constituting
fees, indemnities, expenses and other amounts (including Attorney Costs and
amounts payable under Article V) payable to the Administrative Agent in its
capacity as such;
DEVON CREDIT AGREEMENT
109
Second, to payment of that portion of the US Obligations constituting
fees, indemnities and other amounts (other than principal and interest) payable
to the Lenders (including Attorney Costs and amounts payable under Article V),
ratably among them in proportion to the amounts described in this clause Second
payable to them;
Third, to payment of that portion of the US Obligations constituting
accrued and unpaid interest on the US Loans and US L/C Borrowings, ratably among
the Lenders in proportion to the respective amounts described in this clause
Third payable to them;
Fourth, to payment of that portion of the US Obligations constituting
unpaid principal of the US Loans and US L/C Borrowings, ratably among the
Lenders in proportion to the respective amounts described in this clause Fourth
held by them;
Fifth, to the Administrative Agent for the account of the US L/C
Issuer, to Cash Collateralize that portion of US L/C Obligations comprised of
the aggregate undrawn amount of Letters of Credit;
Sixth, to amounts payable under the US Borrower Guaranty in accordance
with Section 10.02; and
Last, the balance, if any, after all of the US Obligations and all
obligations of the US Borrower under the US Borrower Guaranty have been paid in
full, to the US Borrower or as otherwise required by Law.
Subject to Section 2.04(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such US Letters of Credit as they occur. If
any amount remains on deposit as Cash Collateral after all US Letters of Credit
have either been fully drawn or expired, such remaining amount shall be applied
to the other US Obligations, if any, in the order set forth above.
10.05 APPLICATION OF FUNDS RECEIVED UNDER ULC GUARANTY. All amounts
received by the Administrative Agent or any Lender under the ULC Guaranty shall
be applied to the Obligations owing to each Lender in accordance with such
Lender's Pro Rata Share in the order provided in Section 10.03 or Section 10.04,
as applicable.
10.06 SEPARATE OBLIGATIONS. Except as expressly set forth in
Sections 4.02 and 12.06, (i) all obligations of Northstar Energy and Devon
Canada under this Agreement and the other 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
Borrowings made by the Canadian Lenders to Devon Canada or Canadian Letters of
Credit issued for the account of Devon Canada nor shall Devon Canada have any
liabilities in respect of Canadian Borrowings made by the Canadian Lenders to
Northstar Energy or Canadian Letters of Credit issued for the account of
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 Borrowings made to Devon
Canada or any
DEVON CREDIT AGREEMENT
110
other obligations of Devon Canada or relating to US Borrowings made to the US
Borrower or any other Obligations of US Borrower.
ARTICLE XI.
ADMINISTRATIVE AGENT
11.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably appoints, designates and
authorizes the Administrative Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative 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) The applicable L/C Issuer shall act on behalf of the Lenders
with respect to any Letters of Credit issued by it and the documents associated
therewith, and such L/C Issuer shall have all of the benefits and immunities (i)
provided to the Administrative Agent in this Article XI with respect to any acts
taken or omissions suffered by such L/C Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and the applications and
agreements for letters of credit pertaining to such Letters of Credit as fully
as if the term "Administrative Agent" as used in this Article XI and in the
definition of "Agent-Related Person" included such L/C Issuer with respect to
such acts or omissions, and (ii) as additionally provided herein with respect to
any L/C Issuer.
11.02 DELEGATION OF DUTIES. The Administrative Agent may execute any
of its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact, including without limitation the
execution by Administrative Agent of duties relating to the Canadian SubFacility
and shall be entitled to advice of counsel and other consultants or experts
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct, including but not limited to those used in connection with the
Canadian SubFacility.
DEVON CREDIT AGREEMENT
111
11.03 LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Person
shall (a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct in connection with its duties expressly set forth herein), or (b) be
responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Loan Party or any officer
thereof, contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure
of any Loan Party or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Loan Party or any Affiliate thereof.
11.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, electronic mail message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to any Loan
Party), independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent shall be fully justified in failing or refusing
to take any action under any Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate and, if it
so requests, 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 or continuing to take any such action. The Administrative 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 Required Lenders (or such greater number of Lenders as may be
expressly required hereby in any instance) and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 6.01, 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 required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
11.05 NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from
DEVON CREDIT AGREEMENT
112
a Lender or a Borrower referring to this Agreement, describing such Default and
stating that such notice is a "notice of default." The Administrative Agent will
notify the Lenders of its receipt of any such notice. The Administrative Agent
shall take such action with respect to such Default as may be directed by the
Required Lenders in accordance with Section 10.02; provided, however, that
unless and until the Administrative Agent has received any such direction, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it shall deem
advisable or in the best interest of the Lenders.
11.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT. Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the applicable Borrowers hereunder. Each Lender also
represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrowers. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent herein, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any of the Loan Parties or any of
their respective Affiliates which may come into the possession of any
Agent-Related Person.
11.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of any Loan Party and without limiting the obligation of any Loan Party
to do so), pro rata, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it, provided, however,
that no Lender shall be liable for the payment to any Agent-Related Person of
any portion of such Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from such Agent-Related Person's own gross negligence or willful misconduct;
provided, however, that no action taken in accordance with the directions of the
Required Lenders or all the Lenders, if applicable, shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
DEVON CREDIT AGREEMENT
113
Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the Borrowers. The
undertaking in this Section shall survive termination of the Aggregate
Commitments, the payment of all other Obligations and the resignation of the
Administrative Agent.
11.08 BANK OF AMERICA IN ITS INDIVIDUAL CAPACITY. Bank of America
(acting through its Canadian branch or otherwise) 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 of the Loan Parties
and their respective Affiliates as though Bank of America (acting through its
Canadian branch or otherwise) were not the Administrative Agent or L/C Issuer
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding any Loan Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Loan Party or such Affiliate) and acknowledge that the Administrative Agent
shall be under no obligation to provide such information to them. With respect
to its Loans, Bank of America (acting through its Canadian branch or otherwise)
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 Administrative
Agent or L/C Issuer, and the terms "Lender," "Lenders," "Canadian Lender," and
"Canadian Lenders" include Bank of America in its individual capacity.
11.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders and the
Borrowers; provided that any such resignation by Bank of America shall also
constitute its resignation as US Swing Line Lender and Canadian Swing Line
Lender, and, so long as one or more financial institutions reasonably acceptable
to the Borrowers have accepted their appointment as a successor US L/C Issuer
and Canadian L/C Issuer, as US L/C Issuer and Canadian L/C Issuer with respect
to Letters of Credit requested by the applicable Borrower to be issued on or
after the effective date of such resignation. If the Administrative Agent
resigns under this Agreement, (a) the Required Lenders shall appoint from among
the Lenders (that are also Canadian Lenders) a successor administrative agent
(the "successor Administrative Agent") for the Lenders, which successor
Administrative Agent shall be consented to by the US Borrower at all times other
than during the existence of an Event of Default (which consent of the US
Borrower shall not be unreasonably withheld or delayed). If no successor
Administrative Agent is appointed, prior to the effective date of the
resignation of the Administrative Agent, the Administrative Agent may appoint,
after consulting with the Lenders and the US Borrower, a successor
Administrative Agent from among the Lenders (that are also Canadian Lenders).
Upon the acceptance of its appointment as successor Administrative Agent
hereunder, the Persons acting as such successor Administrative Agent shall
succeed to all the respective rights, powers and duties of the retiring
Administrative Agent, US L/C Issuer, Canadian L/C Issuer, US Swing Line Lender
and Canadian Swing Line
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Lender and the respective terms "Administrative Agent," "US L/C Issuer,"
"Canadian L/C Issuer," "US Swing Line Lender," and "Canadian Swing Line Lender,"
shall mean such successor Administrative Agent, US L/C Issuer, Canadian L/C
Issuer, US Swing Line Lender and Canadian Swing Line Lender, as applicable, the
retiring Administrative Agent's appointment, powers and duties as Administrative
Agent shall be terminated, and the retiring US L/C Issuer's, Canadian L/C
Issuer's, US Swing Line Lender's and Canadian Swing Line Lender's rights, powers
and duties as such shall be terminated, except with respect to Letters of Credit
issued by it as US L/C Issuer or Canadian L/C Issuer prior to the effective date
of its resignation. All of the provisions of this Agreement that apply to such
Letters of Credit shall continue in full force and effect, without any other or
further act or deed on the part of such retiring L/C Issuer or Swing Line Lender
or any other Lender. The successor L/C Issuers may issue letters of credit in
substitution for the Letters of Credit issued by Bank of America in its capacity
as L/C Issuer, if any, outstanding at the time of such succession. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Article XI and Sections 12.04 and 12.05 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor Administrative Agent
has accepted appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
Administrative Agent as provided for above.
11.10 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the applicable
Borrower) shall be entitled and empowered, by intervention in such proceeding or
otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C Obligations
and all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of the
Lenders and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and the
Administrative Agent and their respective agents and counsel and all other
amounts due the Lenders and the Administrative Agent under Sections 2.04(i) and
(j), 4.02 and 12.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
DEVON CREDIT AGREEMENT
115
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 4.02 and 12.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent
to authorize or consent to or accept or adopt on behalf of any Lender any plan
of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
11.11 GUARANTY MATTERS. The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion, to release any
Guarantor, other than US Borrower, from its obligations under the Guaranty if
such Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder. Upon request by the Administrative Agent at any time, (a) the US
Required Lenders will confirm in writing the Administrative Agent's authority to
release any US Guarantor, and (b) the Canadian Required Lenders will confirm in
writing Administrative Agent's authority to release any Canadian Guarantor
(other than US Borrower), from its obligations under the applicable Guaranty
pursuant to this Section 11.11.
11.12 ARRANGERS AND MANAGERS. None of the Persons identified on the
cover page or signature pages of this Agreement as a "book manager" or "joint
lead arranger" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of any such
Person that is also a Lender or a Canadian Lender, those applicable to all
Lenders or Canadian Lenders, respectively, as such. Without limiting the
foregoing, none of the Persons 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 Persons so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.
ARTICLE XII.
MISCELLANEOUS
12.01 AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement or any other Loan Document (other than the Fee Letters and the
Issuer Documents), and no consent to any departure by any Borrower or any other
Loan Party therefrom, shall be effective unless in writing signed by the
Required Lenders and the Borrowers and acknowledged by the Administrative Agent;
provided that with respect to Article III of this Agreement and the definitions
in Section 1.01 relating only to Article III, by the Required Canadian Lenders.
Each such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no such
amendment, waiver or consent shall:
(a) waive any condition set forth in Section 6.01(a) without the
written consent of each Lender directly affected thereby;
(b) extend or increase the Aggregate Commitment or the Aggregate
Canadian Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 10.02) without the written consent of such Lender;
DEVON CREDIT AGREEMENT
116
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment or mandatory prepayment of principal, interest or fees
due to the Lenders (or any of them) or any scheduled or mandatory reduction of
the Aggregate Commitments hereunder or under any other Loan Document without the
written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified
herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second
proviso to this Section 12.01) any fees payable hereunder or under any other
Loan Document; provided, however, that only the consent of the Required Lenders
shall be necessary (i) to waive or amend any obligation of any Borrower to pay
interest at the rate provided herein for past due Obligations, or (ii) to amend
any financial covenant hereunder (or any defined term used therein);
(e) change Section 4.06, Section 10.03, Section 10.04 or Section
10.05 in a manner that would alter the pro rata sharing of payments required
thereby without the written consent of each Lender;
(f) change any provision of this Section or the definition of
"Required Lenders" or "Canadian Required Lenders" or "US Required Lenders" or
any other provision hereof specifying the number or percentage of Lenders
required to amend, waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender, or in the case of the definition of "Canadian Required Lenders",
all Canadian Lenders;
(g) release Devon Financing ULC from its Guaranty without the
written consent of each Lender, unless expressly permitted by the Loan
Documents; or
(h) release the US Borrower from the Canadian Guaranty without the
written consent of each Canadian Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the applicable L/C Issuer in addition to the Lenders
required above, affect the rights or duties of any L/C Issuer under this
Agreement or any Letter of Credit Application relating to any Letter of Credit
issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless
in writing and signed by the US Swing Line Lender or Canadian Swing Line Lender
in addition to the Lenders required above, affect the rights or duties of the US
Swing Line Lender or Canadian Swing Line Lender, as applicable, under this
Agreement; (iii) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document; and (iv) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.
12.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
DEVON CREDIT AGREEMENT
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(a) General. Unless otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission). All such written notices shall be mailed
certified or registered mail, faxed or delivered to the applicable address,
facsimile number or (subject to subsection (c) below) electronic mail address,
and all notices and other communications expressly permitted hereunder to be
given by telephone shall be made to the applicable telephone number, as follows:
(i) if to any Borrower, Administrative Agent, L/C Issuer,
US Swing Line Lender, or Canadian Swing Line Lender, to the address,
facsimile number, electronic mail address or telephone number specified
for such Person on Schedule 12.02 or to such other address, facsimile
number, electronic mail address or telephone number as shall be
designated by such party in a notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile
number, electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile
number, electronic mail address or telephone number as shall be
designated by such party in a notice to the Borrowers, the
Administrative Agent, L/C Issuer, US Swing Line Lender, and Canadian
Swing Line Lender.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by facsimile shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to
the Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent, provided that the foregoing shall not
apply to notices to any Lender pursuant to Article II or to any Canadian Lender
pursuant to Article III if such Lender has notified the Administrative Agent
that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or any Borrower may, in its discretion,
agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that approval of
such procedures may be limited to particular notices or communications.
(c) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually-signed originals and shall be binding on all
Loan Parties, the Administrative Agent and the Lenders. The Administrative Agent
may also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
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(d) Reliance by Administrative Agent and Lenders. The
Administrative Agent and the Lenders shall be entitled to rely and act upon any
notices (including telephonic US Committed Loan Notices, Canadian Committed
Borrowing Notices, US Swing Line Loan Notices and Canadian Swing Line Loan
Notices) purportedly given by or on behalf of any Borrower even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof. The US Borrower shall indemnify each Agent-Related Person and each
Lender, and each Canadian Borrower shall, jointly and severally, indemnify each
Agent-Related Person and each Canadian Lender, from all losses, costs, expenses
and liabilities resulting from the reliance by such Person on each notice
purportedly given by or on its behalf. All telephonic notices to and other
communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
12.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or
the Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
12.04 ATTORNEY COSTS AND EXPENSES. The US Borrower agrees (a) to pay
or reimburse the Administrative Agent for all reasonable and documented
out-of-pocket costs and expenses incurred in connection with the development,
preparation, negotiation and execution of this Agreement and the other Loan
Documents and any amendment, waiver, consent or other modification of the
provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated), and the consummation and administration of
the transactions contemplated hereby and thereby, including all Attorney Costs
(but not other costs of legal counsel), and (b) to pay or reimburse the
Administrative Agent and each Lender for all reasonable and documented
out-of-pocket costs and expenses incurred in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this
Agreement or the other Loan Documents (including all such costs and expenses
incurred during any "workout" or restructuring in respect of the Obligations and
during any legal proceeding, including any proceeding under any Debtor Relief
Law), including all Attorney Costs and Workout Attorney Costs (but no other
costs of legal counsel). All amounts due under this Section 12.04 shall be
payable within ten Business Days after demand therefor. The agreements in this
Section shall survive the termination of the Aggregate Commitments and repayment
of all other Obligations. As used in this section, "Workout Attorney Costs"
means all fees, expenses and disbursements of one law firm for JP Morgan, one
law firm for all Persons included in the definition of Canadian L/C Issuer if
they believe in good faith that separate counsel is necessary, and one other law
firm for the other Lenders, if they deem necessary; provided that if Required
Lenders reasonably determine that a conflict of interest exists with respect to
any of such law firms, one additional law firm selected by Required Lenders.
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12.05 INDEMNIFICATION BY THE US BORROWER. Whether or not the
transactions contemplated hereby are consummated, the US Borrower shall
indemnify and hold harmless each Agent-Related Person, each Lender, each Person
included in the definition of L/C Issuer and their respective Affiliates,
directors, officers, employees, counsel, agents and attorneys-in-fact (in this
section collectively called the "Indemnitees") from and against any and all
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, and reasonable and documented costs, expenses and
disbursements (including Attorney Costs) of any kind or nature whatsoever which
may at any time be imposed on, incurred by or asserted against any such
Indemnitee in any way relating to or arising out of or in connection with (a)
the execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby, (b) any Commitment, Loan, Letter of
Credit or Banker's Acceptance accepted by a Lender hereunder or the use or
proposed use of the proceeds therefrom (including any refusal by the L/C Issuer
to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (c) any actual or alleged presence or release of
Hazardous Materials on or from any property currently or formerly owned or
operated by any Borrower, any Subsidiary or any other Loan Party, or any
Environmental Liability related in any way to the any Borrower, any Subsidiary
or any other Loan Party, or (d) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory (including any investigation of, preparation
for, or defense of any pending or threatened claim, investigation, litigation or
proceeding) and regardless of whether any Indemnitee is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"), in all cases, WHETHER
OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE NEGLIGENCE OF THE
INDEMNITEE; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses or
disbursements are determined by a court of competent jurisdiction by final
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee. No Indemnitee shall be liable for any damages arising from the
use by others of any information or other materials obtained through IntraLinks
or other similar information transmission systems in connection with this
Agreement, nor shall any Indemnitee have any liability for any indirect or
consequential damages relating to this Agreement or any other Loan Document or
arising out of its activities in connection herewith or therewith (whether
before or after the Closing Date). All amounts due under this Section 12.05
shall be payable within ten Business Days after demand therefor. The agreements
in this Section shall survive the resignation of the Administrative Agent, the
replacement of any Lender, the termination of the Aggregate Commitments and the
repayment, satisfaction or discharge of all the other Obligations.
12.06 INDEMNIFICATION BY DEVON CANADA. Whether or not the
transactions contemplated hereby are consummated, Devon Canada shall indemnify
and hold harmless each Agent-Related Person, each Canadian Lender, each Person
included in the definition of Canadian L/C Issuer and their respective
Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact (in this section collectively called the "Indemnitees") from
and against any and all liabilities, obligations, losses, damages, penalties,
claims, demands, actions, judgments, suits, and reasonable and documented costs,
expenses and disbursements (including Attorney Costs) of
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any kind or nature whatsoever which may at any time be imposed on, incurred by
or asserted against any such Indemnitee in any way relating to or arising out of
or in connection with (a) the execution, delivery, enforcement, performance or
administration of any Loan Document or any other agreement, letter or instrument
delivered in connection with the transactions contemplated thereby, (b) any
Canadian Commitment, Canadian Borrowing or Canadian Letter of Credit or the use
or proposed use of the proceeds therefrom (including any refusal by the Canadian
L/C Issuer to honor a demand for payment under a Canadian Letter of Credit if
the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (c) any actual or alleged presence or
release of Hazardous Materials on or from any property currently or formerly
owned or operated by any Canadian Borrower, any Subsidiary or any other Loan
Party, or any Environmental Liability related in any way to any Canadian
Borrower, any such Subsidiary or any other Loan Party, or (d) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"), in all cases, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN
PART, OUT OF THE NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee. No Indemnitee shall be
liable for any damages arising from the use by others of any information or
other materials obtained through IntraLinks or other similar information
transmission systems in connection with this Agreement, nor shall any Indemnitee
have any liability for any indirect or consequential damages relating to this
Agreement or any other Loan Document or arising out of its activities in
connection herewith or therewith (whether before or after the Closing Date). All
amounts due under this Section 12.05 shall be payable within ten Business Days
after demand therefor. The agreements in this Section shall survive the
resignation of the Administrative Agent, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations.
12.07 PAYMENTS SET ASIDE. To the extent that any payment by or on
behalf of any Borrower is made to the Administrative Agent or any Lender, or the
Administrative Agent or any Lender exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent
or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such set-off had
not occurred, and (b) each Lender severally agrees to pay to the Administrative
Agent upon demand its applicable share of any amount so recovered from or repaid
by the Administrative Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the Federal Funds
Rate from time to time in effect.
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12.08 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that, except as permitted under Section 9.04,
the US Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender, no
Canadian Borrower may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Canadian Lender
and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions
of subsection (b) of this Section, (ii) by way of participation in accordance
with the provisions of subsection (d) of this Section, or (iii) by way of pledge
or assignment of a security interest subject to the restrictions of subsection
(f) of this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Subject to the following requirements of this Section 12.08,
and in the case of Bank of America, Section 11.09, 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 all or a portion of its Commitment
and the Loans (including for purposes of this subsection (b), participations in
L/C Obligations and in Swing Line Loans) at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and the Obligations at the time owing to it or in
the case of an assignment to a Lender or an Affiliate of a Lender or an Approved
Fund (as defined in subsection (g) of this Section) with respect to a Lender,
the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) subject to each such assignment, determined as of the
date the Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent or, if "Trade Date" is specified in the Assignment
and Assumption, as of the Trade Date, shall not be less than US $10,000,000
unless each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the US Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); (ii) each partial
assignment shall be made as an assignment of a proportionate part of (A) the
assigning Lender's Commitment (including the Canadian Commitment and Maximum
Canadian Commitment of such Lender or its Affiliate, if any), and (B) all the
assigning Lender's rights and obligations under this Agreement with respect to
its US Loans, US L/C Obligations, participations in US Swing Line Loans,
Canadian Loans, Canadian L/C obligations, participations in Canadian Swing Line
Loans and Bankers' Acceptances, except that this clause (ii) shall not apply to
rights in respect of Bid Loans or Swing Line Loans; (iii) any assignment of a
Commitment must also be approved by the Administrative Agent, each Person
included in the definition of US L/C Issuer and the US Swing Line Lender, and
any assignment of a Canadian Commitment must be approved by the Administrative
Agent, each Person included in the definition of Canadian L/C Issuer and the
Canadian Swing Line Lender, unless the Person that is the proposed assignee is
itself a Lender (or an Affiliate of a Lender) and a Canadian Resident Lender, if
applicable
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(whether or not the proposed assignee would otherwise qualify as an Eligible
Assignee); and (iv) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of US $3,500. Subject to acceptance and recording
thereof by the Administrative Agent pursuant to subsection (c) 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
rights and obligations under this Agreement of the assigning Lender, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, 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 5.01, 5.04, 5.05, 12.04, 12.05 and 12.06 with respect to
facts and circumstances occurring prior to the effective date of such
assignment). Upon request, each applicable Borrower (at its expense) shall
execute and deliver a Note to the assignee Lender. 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.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrowers, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrowers, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers and the Lenders at any reasonable time
and from time to time upon reasonable prior notice. In addition, at any time
that a request for a consent for a material or other substantive change to the
Loan Documents is pending, any Lender wishing to consult with other Lenders in
connection therewith may request and receive from the Administrative Agent a
copy of the Register.
(d) Any Lender may at any time, without the consent of, or notice
to, the Borrowers or the Administrative Agent, sell participations to any Person
(other than a natural person or any Borrower or any Affiliates or Subsidiaries
of any Borrower) (each, a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans and Bankers' Acceptances (including such
Lender's participations in L/C Obligations and/or Swing Line Loans owing to it);
provided 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 and (iii) the Borrowers, the
Administrative 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. 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
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that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, waiver or other
modification described in the first proviso to Section 12.01 that directly
affects such Participant. Subject to subsection (e) of this Section, Borrowers
agree that each Participant shall be entitled to the benefits of Sections 5.01,
5.04 and 5.05 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to subsection (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 12.10 as though it were a Lender, provided such Participant agrees to be
subject to Section 4.06 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater
payment under Section 5.01 or 5.04 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
Borrowers' prior written consent. A Participant that would be a Non-US Lender if
it were a Lender shall not be entitled to the benefits of Section 5.01 unless
the Borrowers are notified of the participation sold to such Participant and
such Participant agrees, for the benefit of the Borrowers, to comply with
Section 12.16 as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including
under its Note, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) As used herein, the following terms have the following
meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural person) approved by (i) the Administrative Agent, the L/C
Issuer, the US Swing Line Lender, and the Canadian Swing Line Lender,
and (ii) unless an Event of Default has occurred and is continuing, the
US Borrower (with respect to a Lender) or the Canadian Borrowers (with
respect to a Canadian Lender) (each such approval not to be
unreasonably withheld or delayed); provided that notwithstanding the
foregoing, "Eligible Assignee" shall not include (A) any Borrower or
any Affiliates or Subsidiaries of any Borrower or (B) any Canadian
Lender that is not a Canadian Resident Lender.
"Fund" means any Person (other than a natural person) that is
engaged in making and holding commercial loans and similar extensions
of credit in the ordinary course of its business.
"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.
(h) Notwithstanding anything to the contrary contained herein, if
at any time Bank of America assigns all of its Commitment and Loans pursuant to
subsection (b) above, Bank of
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America may, (i) upon 30 days' notice to the Borrowers and the Lenders, and, so
long as one or more financial institutions reasonably acceptable to the
Borrowers have accepted their appointment as a successor L/C Issuer, resign as
L/C Issuer and/or (ii) upon 30 days' notice to the Borrowers, resign as US Swing
Line Lender and Canadian Swing Line Lender. In the event of any such resignation
as L/C Issuer, US Swing Line Lender, or Canadian Swing Line Lender, the US
Borrower shall be entitled to appoint from among the Lenders a successor US L/C
Issuer or US Swing Line Lender hereunder, and the Canadian Borrowers shall be
entitled to appoint from among the Canadian Lenders a successor Canadian L/C
Issuer or Canadian Swing Line Lender hereunder; provided, however, that no
failure by any Borrower to appoint any such successor shall affect the
resignation of Bank of America as (except as provided above) L/C Issuer, US
Swing Line Lender, or Canadian Swing Line Lender, as the case may be. If Bank of
America resigns as L/C Issuer, it shall retain all the rights and obligations of
the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of
the effective date of its resignation as L/C Issuer and all L/C Obligations with
respect thereto (including the right to require the Lenders to make Base Rate
Committed Loans or fund risk participations in US Unreimbursed Amounts pursuant
to Section 2.04(c) and to require the Canadian Lenders to make Canadian Prime
Rate Committed Loans or fund risk participations in Canadian Unreimbursed
Amounts pursuant to Section 3.04(c). If Bank of America resigns as US Swing Line
Lender or Canadian Swing Line Lender, it shall retain all the rights of the US
Swing Line Lender or Canadian Swing Line Lender, as applicable, provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders
to make Base Rate Committed Loans or fund risk participations in outstanding
Swing Line Loans pursuant to Section 2.05(c).
12.09 CONFIDENTIALITY. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its Affiliates and to
its and its Affiliates' respective partners, directors, officers, employees,
agents, advisors and representatives (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential) and that the
Lender providing any such Information shall be responsible for the breach
thereof by any such Person, (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process; provided that Administrative Agent or such Lender, as
applicable, shall notify US Borrower if disclosure of such Information is so
required, to the extent it is not prohibited from doing so by any Law or such
subpoena or legal process, (d) to any other party hereto, (e) in connection with
the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to any Borrower and its obligations, (g) with the consent of any
Borrower, or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available to
the Administrative Agent or any Lender on a nonconfidential basis from
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a source other than any Borrower unless Administrative Agent or such Lender, as
applicable, shall know that such source was required to keep such information
confidential. For purposes of this Section, "Information" means all information
received from any Borrower or any of its Subsidiaries relating to such Borrower
or any Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by such Borrower or any Subsidiary,
provided that, in the case of information received from any Borrower or any
Subsidiary after the date hereof, such information is clearly identified at the
time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
12.10 BANK ACCOUNTS; OFFSET. (a) The US Borrower hereby agrees that
each 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 Borrower now or hereafter held or received
by or in transit to any Lender for the account of the US Borrower, (b) any and
all deposits (general or special, time or demand, provisional or final) of the
US Borrower with any Lender, (c) any other credits and balances of the US
Borrower at any time existing against any Lender, including claims under
certificates of deposit, and (d) any indebtedness owed or payable by any Lender
to the US Borrower at any time against Obligations 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 Obligations then due and payable to it (in
either case without notice to the US Borrower), any and all items hereinabove
referred to. To the extent that the US 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 the US Borrower for the account of, third party royalty or joint
interest owners. Each Lender agrees promptly to notify each applicable Borrower
and the Administrative Agent after any such set-off and application made by such
Lender; provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application.
(b) 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 such Canadian 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 Canadian Lender to such Canadian
Borrower at any time against Canadian Obligations 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 Canadian Lender is
hereby authorized to offset against the Canadian Obligations then due and
payable to it by such Canadian Borrower (in either case
DEVON CREDIT AGREEMENT
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without notice to such Canadian Borrower), any and all items hereinabove
referred to. To the extent that either 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. Each Canadian Lender agrees promptly to notify each
Canadian Borrower and the Administrative Agent after any such set-off and
application made by such Canadian Lender; provided, however, that the failure to
give such notice shall not affect the validity of such set-off and application.
12.11 INTEREST RATE LIMITATION. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "Maximum Rate"). If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if
it exceeds such unpaid principal, refunded to the applicable Borrower. In
determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to
the extent permitted by applicable Law, (a) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder. In no event shall
the aggregate "interest" (as defined in section 347 of the Criminal Code
(Canada)) payable with respect to any Canadian Obligations 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, Administrative Agent and Lenders and the amount of such
excess payment or collection shall be refunded to Canadian Borrowers. For
purposes of the Canadian Obligations, 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 Administrative Agent shall be prima facie evidence, for
the purposes of such determination.
12.12 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12.13 INTEGRATION. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the
DEVON CREDIT AGREEMENT
127
joint participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the
fair meaning thereof.
12.14 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any US Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any US Letter of Credit shall remain
outstanding.
12.15 SEVERABILITY. If any provision of this Agreement or the other
Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
12.16 TAX FORMS. (a) (i) Each Lender that is not a "United States
person" within the meaning of Section 7701(a)(30) of the Code (a "Non-US
Lender") shall deliver to the US Borrower and Administrative Agent, prior to
receipt of any payment subject to withholding under the Code (or upon accepting
an assignment of an interest herein), two duly signed completed copies of either
IRS Form W-8BEN or any successor thereto (relating to such Non-US Lender and
entitling it to an exemption from, or reduction of, withholding tax on all
payments to be made to such Non-US Lender by any Borrower pursuant to this
Agreement) or IRS Form W-8ECI or any successor thereto (relating to all payments
to be made to such Non-US Lender by any Borrower pursuant to this Agreement) or
such other evidence satisfactory to the applicable Borrower and the
Administrative Agent that such Non-US Lender is entitled to an exemption from,
or reduction of, U.S. withholding tax, including any exemption pursuant to
Section 881(c) of the Code. Thereafter and from time to time, each such Non-US
Lender shall (A) promptly submit to the US Borrower and Administrative Agent
such additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to the
applicable Borrower and the Administrative Agent of any available exemption from
or reduction of, United States withholding taxes in respect of all payments to
be made to such Non-US Lender by the applicable Borrower pursuant to this
Agreement, (B) promptly notify the US Borrower and Administrative Agent of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction, and (C) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to
avoid any
DEVON CREDIT AGREEMENT
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requirement of applicable Laws that the applicable Borrower make any deduction
or withholding for taxes from amounts payable to such Non-US Lender.
(ii) Each Non-US Lender, to the extent it does not act or
ceases to act for its own account with respect to any portion of any
sums paid or payable to such Lender under any of the Loan Documents
(for example, in the case of a typical participation by such Lender),
shall deliver to the Administrative Agent and the US Borrower on the
date when such Non-US Lender ceases to act for its own account with
respect to any portion of any such sums paid or payable, and at such
other times as may be necessary in the determination of the
Administrative Agent (in the reasonable exercise of its discretion),
(A) two duly signed completed copies of the forms or statements
required to be provided by such Lender as set forth above, to establish
the portion of any such sums paid or payable with respect to which such
Lender acts for its own account that is not subject to U.S. withholding
tax, and (B) two duly signed completed copies of IRS Form W-8IMY (or
any successor thereto), together with any information such Lender
chooses to transmit with such form, and any other certificate or
statement of exemption required under the Code, to establish that such
Lender is not acting for its own account with respect to a portion of
any such sums payable to such Lender.
(iii) No Borrower shall be required to pay any additional
amount to any Non-US Lender under Section 5.01 (A) with respect to any
Taxes required to be deducted or withheld on the basis of the
information, certificates or statements of exemption such Lender
transmits with an IRS Form W-8IMY pursuant to this Section 12.16(a) or
(B) if such Lender shall have failed to satisfy the foregoing
provisions of this Section 12.16(a); provided that if such Lender shall
have satisfied the requirement of this Section 12.16(a) on the date
such Lender became a Lender or ceased to act for its own account with
respect to any payment under any of the Loan Documents, nothing in this
Section 12.16(a) shall relieve the applicable Borrower of its
obligation to pay any amounts pursuant to Section 5.01 in the event
that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof, such Lender is
no longer properly entitled to deliver forms, certificates or other
evidence at a subsequent date establishing the fact that such Lender or
other Person for the account of which such Lender receives any sums
payable under any of the Loan Documents is not subject to withholding
or is subject to withholding at a reduced rate.
(iv) The Administrative Agent may, without reduction,
withhold any Taxes required to be deducted and withheld from any
payment under any of the Loan Documents with respect to which no
Borrower is required to pay additional amounts under this Section
12.16(a).
(b) Upon the request of the Administrative Agent, each Lender that
is a "United States person" within the meaning of Section 7701(a)(30) of the
Code shall deliver to the Administrative Agent two duly signed completed copies
of IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to
DEVON CREDIT AGREEMENT
129
such Lender an amount equivalent to the applicable back-up withholding tax
imposed by the Code, without reduction.
(c) If any Governmental Authority asserts that the Administrative
Agent did not properly withhold or backup withhold, as the case may be, any tax
or other amount from payments made to or for the account of any Lender, such
Lender shall indemnify the Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section, and costs and expenses
(including Attorney Costs) of the Administrative Agent. The obligation of the
Lenders under this Section shall survive the termination of the Aggregate
Commitments, repayment of all other Obligations hereunder and the resignation of
the Administrative Agent.
12.17 REPLACEMENT OF LENDERS. In the event that any Lender shall (i)
claim payment of any amount pursuant to Section 5.01; (ii) claim any increased
cost pursuant to Section 5.04 or the benefit of Section 5.03; (iii) fail to
agree to extend the Maturity Date pursuant to Section 4.08, if the requisite
Lenders have agreed to do so; (iv) become and continue to be a Defaulting
Lender; or (v) fail to consent to an election, consent, amendment, waiver or
other modification to this Agreement or any other Loan Document that requires
the consent of a greater percentage of the Lenders than the Required Lenders,
the Required US Lenders or the Required Canadian Lenders, as the case may be,
and such election, consent, amendment, waiver or other modification is otherwise
consented to by the Required Lenders, the Required US Lenders or the Required
Canadian Lenders, as the case may be, (a) the US Borrower may, upon notice to
such Lender and the Administrative Agent, replace such Lender by causing such
Lender to assign its rights and obligations hereunder (with the assignment fee
to be paid by the US Borrower in such instance) pursuant to Section 12.08(b) to
one or more Eligible Assignees that are or have an affiliate that is a Canadian
Resident Lender, if applicable, procured by the US Borrower, each of which shall
assume a pro rata portion of the Commitment (including the Canadian Commitment,
if applicable) and the Credit Extensions of such replaced Lender; provided,
however, that if the US Borrower elects to exercise such right with respect to
any Lender pursuant to Section 5.01, 5.03 or 5.04 or, it shall be obligated to
replace all Lenders that have made similar requests for compensation or benefit
pursuant to Section 5.01, 5.03 or 5.04; or (b) the applicable Borrower may, upon
three Business Days' notice to such Lender through the Administrative Agent,
prepay in full all of the outstanding Loans and Bankers' Acceptances (as
applicable) of such Lender and all other Obligations owing to such Lender, or
its assignee, together with accrued interest thereon to the date of prepayment
and all other amounts owed by the Borrowers to such Lender accrued to the date
of prepayment, and concurrently therewith the US Borrower may terminate this
Agreement with respect to such Lender by giving notice of such termination to
Administrative Agent and such Lender. Upon satisfaction of the requirements set
forth above in clause (a) of the preceding sentence, payment to the Lender to be
replaced of the purchase price in immediately available funds, and the payment
by the US Borrower of all requested costs accruing to the date of purchase which
the Borrowers are obligated to pay under Sections 5.01, 5.03 and 5.04 and all
other amounts owed by the Borrowers to such Lender (other than the principal of
and interest on the Credit Extension of such Lender, and accrued facility and
utilization fees, purchased by the Eligible Assignee) such Eligible Assignee
shall constitute a "Lender", and if applicable, a "Canadian Lender", hereunder,
as the case may be, and the Lender being so replaced shall no longer constitute
a "Lender" or "Canadian Lender" hereunder, as the case may be, and its
DEVON CREDIT AGREEMENT
130
Commitment, and if applicable, its Canadian Commitment, shall be deemed
terminated. If, however, (x) the Eligible Assignee fails to purchase such rights
and interest on such specified date in accordance with the terms of such offer,
the Borrowers shall continue to be obligated to pay amounts to such Lender or
Canadian Lender pursuant to Section 5.01 or increased costs pursuant to Section
5.04, as the case may be, or (y) the Lender proposed to be replaced fails to
consummate such purchase offer, the Borrowers shall not be obligated to pay to
such Lender or Canadian Lender such increased costs or additional amounts
incurred or accrued from and after the date of such purchase offer.
12.18 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED THAT THE
ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE
BORROWERS, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH
OF THE BORROWERS, THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES
ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH OF THE BORROWERS, THE
ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
THE LAW OF SUCH STATE.
12.19 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, 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.
DEVON CREDIT AGREEMENT
131
12.20 USA PATRIOT ACT NOTICE. Each Lender and the Administrative
Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the "Act"), it is required to
obtain, verify and record information that identifies each Borrower, which
information includes the name and address of such Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to
identify such Borrower in accordance with the Act.
12.21 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[SIGNATURE PAGES FOLLOW]
DEVON CREDIT AGREEMENT
132
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
DEVON ENERGY CORPORATION,
as the US Borrower
By: /s Jeffrey A. Agosta
----------------------------------------
Jeffrey A. Agosta
Vice President - Corporate Finance and
Treasurer
NORTHSTAR ENERGY CORPORATION,
as a Canadian Borrower
By: /s/ Paul F. Brereton
----------------------------------------
Paul F. Brereton
Vice President, Finance
DEVON CANADA CORPORATION,
as a Canadian Borrower
By: /s/ Paul F. Brereton
----------------------------------------
Paul F. Brereton
Vice President, Finance
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Richard L. Stein
----------------------------------------
Richard Stein
Principal
DEVON CREDIT AGREEMENT
S-1
BANK OF AMERICA, N.A., by its Canada
branch, as Administrative Agent
By: /s/ Medina Sales de Andrade
----------------------------------------
Medina Sales de Andrade
Assistant Vice-President
BANK OF AMERICA, N.A., as a Lender, a US
L/C Issuer, and a US Swing Line Lender
By: /s/ Richard L. Stein
----------------------------------------
Richard Stein
Principal
BANK OF AMERICA, N.A., by its Canada
branch, as a Canadian Lender, a Canadian L/C
Issuer, and a Canadian Swing Line Lender
By: /s/ Medina Sales de Andrade
----------------------------------------
Medina Sales de Andrade
Assistant Vice-President
JPMORGAN CHASE BANK, as a Lender and a
US L/C Issuer
By: /s/ Robert C. Mertensotto
----------------------------------------
Robert C. Mertensotto
Managing Director
DEVON CREDIT AGREEMENT
S-2
JPMORGAN CHASE BANK, Toronto Branch,
as a Canadian Lender
By: /s/ Drew McDonald
----------------------------------------
Drew McDonald
Vice President
ABN AMRO BANK N.V., as a Lender
By: /s/ Frank R. Russo, Jr.
----------------------------------------
Frank R. Russo, Jr.
Vice President
By: /s/ John D. Reed
----------------------------------------
John D. Reed
Vice President
ABN AMRO BANK N.V., as a Canadian Lender
By: /s/ David Moore
----------------------------------------
David Moore
Director
Credit Portfolio Management
By: /s/ Margot Cordina
----------------------------------------
Margot Cordina
Vice President
Credit Portfolio Management
BANK OF MONTREAL, as a Lender
By: /s/ James V. Ducote
----------------------------------------
James V. Ducote
Director
DEVON CREDIT AGREEMENT
S-3
BANK OF MONTREAL, as a Canadian Lender
By: /s/ James V. Ducote
----------------------------------------
James V. Ducote
Director
BARCLAYS BANK PLC, as a Lender
By: /s/ Nicholas A. Bell
----------------------------------------
Nicholas A. Bell
Director
BAYERISCHE LANDESBANK, CAYMAN
ISLANDS BRANCH, as a Lender
By: /s/ Dietmar Rieg
----------------------------------------
Dietmar Rieg
Senior Vice President
By: /s/ James H. Boyle
----------------------------------------
James H. Boyle
Vice President
BNP PARIBAS, as a Lender
By: /s/ David Dodd
----------------------------------------
David Dodd
Director
By: /s/ Polly Schott
----------------------------------------
Polly Schott
Vice President
DEVON CREDIT AGREEMENT
S-4
BNP PARIBAS (CANADA), as a Canadian
Lender
By: /s/ Michael Gosselin
----------------------------------------
Michael Gosselin
Managing Director
By: /s/ Edward Pak
----------------------------------------
Edward Pak
Assistant Vice President
CITICORP USA, INC., as a Lender
By: /s/ Todd J. Mogil
----------------------------------------
Todd J. Mogil
Vice President
CITIBANK N.A., CANADIAN BRANCH, as a
Canadian Lender
By: /s/ Adeel Kheraj
----------------------------------------
Adeel Kheraj
Authorized Signatory
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By: /s/ Olivier Audemard
----------------------------------------
Olivier Audemard
Senior Vice President
DEVON CREDIT AGREEMENT
S-5
CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands Branch, as a
Lender
By: /s/ James Moran
----------------------------------------
James Moran
Director
By: /d/ Denise Alvarez
----------------------------------------
Denise Alvarez
Associate
CREDIT SUISSE FIRST BOSTON TORONTO
BRANCH, as a Canadian Lender
By: /s/ Alain Daoust
----------------------------------------
Alain Daoust
Director
By: /s/ Peter Chauvin
----------------------------------------
Peter Chauvin
Vice President
DEUTSCHE BANK AG NEW YORK
BRANCH, as a Lender
By: /s/ Philippe Sandmeier
----------------------------------------
Philippe Sandmeier
Director
By: /s/ Oliver Riedinger
----------------------------------------
Oliver Riedinger
Vice President
DEUTSCHE BANK AG CANADA BRANCH, as
a Canadian Lender
By: /s/ John Maynard
----------------------------------------
John Maynard
Chief Financial Officer
By: /s/ Robert Johnston
----------------------------------------
Robert Johnston
Vice-President
DEVON CREDIT AGREEMENT
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DNB NOR BANK ASA, as a Lender
By: /s/ Alfred C. Jones III
----------------------------------------
Alfred C. Jones III
Senior Vice President
By: /s/ Stig Kristiansen
----------------------------------------
Stig Kristiansen
Vice President
MERRILL LYNCH BANK USA, as a Lender
By: /s/ Louis Alder
----------------------------------------
Louis Alder
Director
MORGAN STANLEY BANK, as a Lender
By: /s/ Daniel Twenge
----------------------------------------
Daniel Twenge
Vice President
ROYAL BANK OF CANADA, as a Lender
By: /s/ Linda M. Stephens
----------------------------------------
Linda M. Stephens
Authorized Signatory
DEVON CREDIT AGREEMENT
S-7
ROYAL BANK OF CANADA, as a Canadian Lender
By: /s/ Linda M. Stephens
----------------------------------------
Linda M. Stephens
Authorized Signatory
SOCIETE GENERALE, as a Lender
By: /s/ Edward A. More
----------------------------------------
Edward A. More
Managing Director
SOCIETE GENERALE (CANADA), as a
Canadian Lender
By: /s/ Cynthia Hansen
----------------------------------------
Cynthia Hansen
Director
Head of Corporate Credit Group
By: /s/ Francois Laliberte
----------------------------------------
Francois Laliberte
Managing Director
Deputy Head of Corporate Credit Group
SOUTHWEST BANK OF TEXAS, N.A., as a
Lender
By: /s/ C. Ross Bartley
----------------------------------------
C. Ross Bartley
Assistant Vice President
DEVON CREDIT AGREEMENT
S-8
THE BANK OF NEW YORK, as a Lender
By: /s/ Raymond J. Palmer
----------------------------------------
Raymond J. Palmer
Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.,
as a Lender
By: /s/ Donald W. Herrick, Jr.
----------------------------------------
Donald W. Herrick, Jr.
Vice President
UBS LOAN FINANCE LLC, as a Lender
By: /s/ Doris Mesa
----------------------------------------
Doris Mesa
Associate Director
Banking Products Services, US
By: /s/ Joselin Fernandes
----------------------------------------
Joselin Fernandes
Associate Director
Banking Products Services, US
UBS AG CANADA BRANCH, as a Canadian
Lender
By: /s/ Amy Fung
----------------------------------------
Amy Fung
Associate Director
By: /s/ Manfred Reich-Rohrwig
----------------------------------------
Manfred Reich-Rohrwig
Director
DEVON CREDIT AGREEMENT
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UMB BANK, N.A., as a Lender
By: /s/ Richard J. Lehrter
----------------------------------------
Richard J. Lehrter
Community Bank President
WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Lender
By: /s/ David Humphreys
----------------------------------------
David Humphreys
Director
WELLS FARGO BANK, N.A., as a Lender
By: /s/ Dustin S. Hansen
----------------------------------------
Dustin S. Hansen
Assistant Vice President
WILLIAMS STREET COMMITMENT
CORPORATION, (Recourse only to assets of
William Street Commitment Corporation),
as a Lender
By: /s/ Jennifer M. Hill
----------------------------------------
Jennifer M. Hill
CFO
THE ROYAL BANK OF SCOTLAND, PLC, as a
Lender
By: /s/ Patricia J. Dundee
----------------------------------------
Patricia J. Dundee
Senior Vice President
DEVON CREDIT AGREEMENT
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