First Amendment to Canadian Credit Agreement among Northstar Energy Corporation, Bank of America Canada, and Canadian Lenders

Summary

This amendment, dated March 1, 2001, updates the Canadian Credit Agreement originally signed on August 29, 2000, between Northstar Energy Corporation (the Canadian Borrower), Bank of America Canada (as administrative agent), and the Canadian Lenders. The amendment reflects the amalgamation of several Alberta corporations into Northstar Energy Corporation, updates certain financial definitions, and clarifies the terms under which securities may be issued by the Canadian Borrower and its subsidiaries. It also confirms that Northstar Energy Corporation is now the sole Canadian Borrower and remains responsible for all prior obligations.

EX-10.2.1 3 d87248ex10-2_1.txt FIRST AMENDMENT TO CANADIAN CREDIT AGREEMENT 1 EXHIBIT 10.2.1 FIRST AMENDMENT TO CANADIAN CREDIT AGREEMENT THIS FIRST AMENDMENT TO CANADIAN CREDIT AGREEMENT (herein called the "Amendment") made as of March 1, 2001 by and among Northstar Energy Corporation, an Alberta corporation, "Canadian Borrower"), Bank of America Canada, individually and as administrative agent ("Canadian Agent"), and the Canadian Lenders party to the Original Agreement defined below ("Canadian Lenders"). WITNESSETH: WHEREAS, Canadian Borrowers, Canadian Agent and Canadian Lenders entered into that certain Canadian Credit Agreement dated as of August 29, 2000 (as amended, supplemented, or restated to the date hereof, the "Original Agreement"), for the purpose and consideration therein expressed, whereby Canadian Lenders became obligated to make loans to Canadian Borrowers as therein provided; WHEREAS, on January 1, 2001 Northstar Energy, Devon Energy Canada Holding Corporation (the successor by amalgamation to Devon Energy Canada) and certain other Alberta corporations, all of which were Subsidiaries of US Borrower, amalgamated under the name Northstar Energy Corporation (defined above as the "Canadian Borrower") which is now the sole Canadian Borrower; WHEREAS, US Borrower has filed a Registration Statement on Form S-3 under the Securities Act of 1933 on November 16, 2000, with respect to the issuance by US Borrower of Common Stock, Preferred Stock, Debt Securities, Stock Purchase Agreements and Stock Purchase Units and the issuance by Devon Financing Trust II of Trust Preferred Securities guaranteed by US Borrower; WHEREAS, in connection with the issuance of such securities, Canadian Borrower, Canadian Agent and Canadian Lenders desire to amend the Original Agreement; NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein and in the Original Agreement, in consideration of the loans which may hereafter be made by Canadian Lenders to Canadian Borrower, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows: 2 ARTICLE I. Definitions and References Section 1.1. Terms Defined in the Original Agreement. Unless the context otherwise requires or unless otherwise expressly defined herein, the terms defined in the Original Agreement shall have the same meanings whenever used in this Amendment. Section 1.2. Other Defined Terms. Unless the context otherwise requires, the following terms when used in this Amendment shall have the meanings assigned to them in this Section 1.2. "Amendment" means this First Amendment to Canadian Credit Agreement. "Amendment Documents" means this Amendment and any other documents delivered to Canadian Agent pursuant to Article III. "Canadian Agreement" means the Original Agreement as amended hereby. ARTICLE II. Amendments to Original Agreement Section 2.1. Defined Terms. (a) The following defined terms in Annex I of the Original Agreement are hereby amended in their entirety to read as follows: "Canadian Borrower(s)" means Northstar Energy Corporation, an amalgamated Alberta corporation resulting from the amalgamation on January 1, 2001 of Northstar Energy, Devon Energy Canada Holding Corporation (which in turn was formed from the prior amalgamation of Devon Energy Canada and Devon Energy Canada Holding Corporation on January 1, 2001) and other Alberta corporations, all of which were wholly-owned Subsidiaries of US Borrower. "Total Capitalization" means the sum (without duplication) of (i) US Borrower's Consolidated Total Funded Debt plus (ii) US Borrower's Consolidated shareholder's equity plus (iii) 60% of the outstanding balance of the Devon Trust Securities. "Total Funded Debt" means (i) Liabilities referred to in clauses (a), (b), (c), (d), and (e) of the definition of "Indebtedness", plus (ii) 40% of the outstanding balance of the Devon Trust Securities. Total Funded Debt shall not include the PennzEnergy Exchangeable Debentures. (b) The following additional defined terms are hereby added to Annex I of the Original Agreement in appropriate alphabetical order to read as follows: 2 3 "Devon Trust" means Devon Financing Trust II, a statutory business trust formed under the laws of the State of Delaware. "Devon Trust Registration Statement" means the Registration Statement on Form S-3 filed by US Borrower under the Securities Act of 1933 on November 16, 2000 with respect to the issuance by US Borrower of Common Stock, Preferred Stock, Debt Securities, Stock Purchase Agreements and Stock Purchase Units, and the issuance by Devon Financing Trust II of Trust Preferred Securities guaranteed by US Borrower, as amended and supplemented from time to time. "Devon Trust Securities" means those certain Trust Preferred Securities, which may be issued by Devon Trust pursuant to the Registration Statement in an aggregate face amount not to exceed $447,261,200. "Subordinated US Borrower Debentures" means those certain Convertible Junior Subordinated Debentures which may be issued by US Borrower to Devon Trust pursuant to the Registration Statement in an aggregate amount not to exceed $447,261,200, which will be subordinate to the Obligations. (c) Section 7.4(a) of the Original Agreement is deleted and replaced with the following: Section 7.4. Limitation on Issuance of Securities by Subsidiaries of US Borrower; Ownership of certain Restricted Subsidiaries by US Borrower. (a) Neither Canadian Borrower nor any Subsidiary of Canadian Borrower that is a Restricted Person will issue any additional shares of its capital stock, additional partnership interests or other securities or any options, warrants or other rights to acquire such additional shares, partnership interests or other securities except to another Restricted Person which is a wholly-owned direct or indirect Subsidiary of US Borrower unless (i) such securities are being issued to acquire a business, directly or indirectly through the use of the proceeds of such issuance, and (ii) such securities are convertible into the common shares or similar securities of US Borrower and/or can be redeemed in cash at the option of the Restricted Person that issued such securities. In addition, (A) Canadian Borrower may issue "Exchangeable Shares" (as defined in the Articles of Amalgamation of Canadian Borrower and in this section called "Exchangeable Shares") upon the terms specified in the Articles of Amalgamation of Canadian Borrower as in effect on January 1, 2001, which terms are substantially the same as those set forth in the Restated Articles of Incorporation of Northstar Energy Corporation immediately prior to the amalgamation of Canadian Borrower, and (B) Canadian Borrower may issue stock options to its employees from time to time to acquire such Exchangeable Shares, provided that such options are granted under a stock option plan of Canadian Borrower and/or US Borrower. 3 4 (d) Section 10.22 of the Original Agreement is deleted and replaced with the following: Section 10.22. Canadian Borrower. It is acknowledged that on January 1, 2001 Northstar Energy, Devon Energy Canada Holding Corporation (which in turn was formed from the prior amalgamation of Devon Energy Canada and Devon Energy Canada Holding Corporation on January 1, 2001) and other Alberta corporations, all of which were wholly-owned Subsidiaries of US Borrower, amalgamated under the name Northstar Energy Corporation and that effective January 1, 2001 Northstar Energy Corporation is the only Canadian Borrower. Effective January 1, 2001, all references in the Original Agreement to Northstar Energy or to Canadian Borrower(s) shall be construed as a reference to such amalgamated corporation Northstar Energy Corporation. Northstar Energy Corporation shall continue to be liable for all of the obligations of Northstar Energy and Devon Energy Canada under the Original Agreement and the other Canadian Loan Documents. Section 2.2. Disclosure Schedule. Paragraph 6 of the Disclosure Schedule to the Original Agreement is hereby deleted and replaced by the list set forth in Schedule 1. ARTICLE III. Conditions of Effectiveness Section 3.1. Effective Date. This Amendment shall become effective as of the date first above written when and only when: (a) Canadian Agent shall have received all of the following, at Canadian Agent's office, duly executed and delivered and in form and substance satisfactory to Canadian Agent, all of the following: (i) the Amendment; (ii) the written opinion of Canadian Borrower's counsel, addressed to Canadian Agent, to the effect that this Amendment and the other Amendment Documents have been duly authorized, executed and delivered by Canadian Borrower and that the Canadian Agreement and the other Amendment Documents constitute the legal, valid and binding obligations of Canadian Borrower, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency and similar laws and to moratorium laws and other laws affecting creditors' rights generally from time to time in effect); (iii) a certificate of the Secretary or Assistant Secretary and of the Chairman of the Board, President, or Vice President - Finance of Canadian Borrower dated the date of this Amendment certifying: (i) that resolutions adopted by the Board of Directors of 4 5 Canadian Borrower authorize the execution, delivery and performance of this Amendment and the other Amendment Documents by Canadian Borrower; (ii) the names and true signatures of the officers of Canadian Borrower authorized to sign this Amendment and the other Amendment Documents; and (iii) that all of the representations and warranties set forth in Article IV hereof are true and correct at and as of the time of such effectiveness; and (iv) such other supporting documents as Canadian Agent may reasonably request. (b) Canadian Borrower shall have paid, in connection with such Canadian Loan Documents, all fees and reimbursements to be paid to Canadian Agent pursuant to any Canadian Loan Documents, or otherwise due Canadian Agent and including fees and disbursements of Canadian Agent's attorneys. ARTICLE IV. Representations and Warranties Section 4.1. Representations and Warranties of Canadian Borrower. In order to induce each Canadian Lender to enter into this Amendment, Canadian Borrower represents and warrants to each Canadian Lender that: (a) The representations and warranties contained in Article V of the Original Agreement are true and correct at and as of the time of the effectiveness hereof, except to the extent that the facts on which such representations and warranties are based have been changed by the extension of credit under the Canadian Agreement. (b) Canadian Borrower is duly authorized to execute and deliver this Amendment and the other Amendment Documents and is and will continue to be duly authorized to borrow monies and to perform its obligations under the Canadian Agreement. Canadian Borrower has duly taken all corporate action necessary to authorize the execution and delivery of this Amendment and the other Amendment Documents and to authorize the performance of its obligations hereunder and thereunder. (c) The execution and delivery by Canadian Borrower of this Amendment and the other Amendment Documents, the performance by Canadian Borrower of its obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby do not and will not conflict with any provision of law, statute, rule or regulation or of the organizational documents and any unanimous shareholders agreement of Canadian Borrower, or of any material agreement, judgment, license, order or permit applicable to or binding upon Canadian Borrower, or result in the creation of any lien, charge or encumbrance upon any assets or properties of Canadian Borrower. Except for those which have been obtained, no consent, approval, authorization or order of any court or governmental authority or third party is required 5 6 in connection with the execution and delivery by Canadian Borrower of this Amendment and the other Amendment Documents or to consummate the transactions contemplated hereby and thereby. (d) When duly executed and delivered, each of this Amendment, the Canadian Agreement and the other Amendment Documents will be a legal and binding obligation of Canadian Borrower, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or similar laws of general application relating to the enforcement of creditors' rights and by equitable principles of general application. (e) The audited annual Consolidated financial statements of US Borrower dated as of December 31, 1999 and the unaudited quarterly Consolidated financial statements of US Borrower dated as of September 30, 2000 fairly present the Consolidated financial position at such dates and the Consolidated statement of operations and the changes in Consolidated financial position for the periods ending on such dates for US Borrower. Copies of such financial statements have heretofore been delivered to each Canadian Lender. Since such dates no material adverse change has occurred in the financial condition or businesses or in the Consolidated financial condition or businesses of US Borrower. ARTICLE V. Miscellaneous Section 5.1. Ratification of Agreements. The Original Agreement as hereby amended is hereby ratified and confirmed in all respects. The Canadian Loan Documents, as they may be amended or affected by the various Amendment Documents, are hereby ratified and confirmed in all respects. Any reference to the Canadian Agreement in any Loan Document shall be deemed to be a reference to the Original Agreement as hereby amended. The execution, delivery and effectiveness of this Amendment and the other Amendment Documents shall not, except as expressly provided herein or therein, operate as a waiver of any right, power or remedy of Canadian Lenders under the Canadian Agreement, or any other Canadian Loan Document nor constitute a waiver of any provision of the Canadian Agreement, or any other Canadian Loan Document. Section 5.2. Survival of Agreements. All representations, warranties, covenants and agreements of Canadian Borrower herein shall survive the execution and delivery of this Amendment and the performance hereof, including without limitation the making or granting of the Loans, and shall further survive until all of the Obligations are paid in full. All statements and agreements contained in any certificate or instrument delivered by Canadian Borrower or any Restricted Person hereunder or under the Canadian Agreement to any Canadian Lender shall be deemed to constitute representations and warranties by, and/or agreements and covenants of, Canadian Borrower under this Amendment and under the Canadian Agreement. 6 7 Section 5.3. Canadian Loan Documents. This Amendment is a Canadian Loan Document, and all provisions in the Canadian Agreement pertaining to Canadian Loan Documents apply hereto and thereto. Section 5.4. Governing Law. This Amendment shall be governed by and construed in accordance the laws of the Province of Alberta and any applicable laws of Canada in all respects, including construction, validity and performance. Section 5.5. Counterparts; Fax. This Amendment may be separately executed in counterparts and by the different parties hereto in separate counterparts, each of which when so executed shall be deemed to constitute one and the same Amendment. This Amendment and the other Amendment Documents may be validly executed by facsimile or other electronic transmission. THIS AMENDMENT AND THE OTHER CANADIAN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS OF THE PARTIES. [THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.] 7 8 IN WITNESS WHEREOF, this Amendment is executed as of the date first above written. NORTHSTAR ENERGY CORPORATION Canadian Borrower By: /s/ Paul Brereton ------------------------------------- Paul Brereton Vice President - Finance 9 BANK OF AMERICA CANADA Administrative Agent, Canadian LC Issuer and Lender By: /s/ Donald R. Chung ------------------------------------- Name: Donald R. Chung Title: Vice President Corporate Investment Banking 10 BANK ONE CANADA Lender By: /s/ Jeanie Harman ------------------------------------- Name: Jeanie Harman Title: First Vice President 11 THE CHASE MANHATTAN BANK Lender By: /s/ Russell A. Johnson ------------------------------------- Name: Russell A. Johnson Title: Vice President 12 UMB BANK Lender By: /s/ Richard J. Lehrter ------------------------------------- Name: Richard J. Lehrter Title: Community Bank President 13 FIRST UNION NATIONAL BANK Lender By: /s/ David Humphreys ------------------------------------- Name: David Humphreys Title: Vice President 14 WESTDEUTSCHE LANDESBANK GIROZENTRALE Lender By: /s/ Duncan M. Robertson ------------------------------------- Name: Duncan M. Robertson Title: Director By: /s/ Thomas Lee ------------------------------------- Name: Thomas Lee Title: Associate 15 THE BANK OF NEW YORK Lender By: /s/ Raymond J. Palmer ------------------------------------- Name: Raymond J. Palmer Title: Vice President 16 ROYAL BANK OF CANADA Lender By: /s/ S. G. Tibbatts ------------------------------------- Name: S. G. Tibbatts Title: Senior Manager 17 SUNTRUST BANK, ATLANTA Lender By: /s/ David J. Edge ------------------------------------- Name: David J. Edge Title: Director 18 J.P. MORGAN CANADA Lender By: /s/ Kenneth Knowles ------------------------------------- Name: Kenneth Knowles Title: Vice President 19 CITIBANK CANADA Lender By: /s/ James K. G. Campbell ------------------------------------- Name: James K. G. Campbell Title: Vice President 20 DEUTSCHE BANK AG NEW YORK AND/OR CAYMAN ISLANDS BRANCHES Lender By: /s/ Joel Makowsky ------------------------------------- Name: Joel Makowsky Title: Vice President By: /s/ Hans C. Narberhaus ------------------------------------- Name: Hans C. Narberhaus Title: Vice President 21 CANADIAN IMPERIAL BANK OF COMMERCE Lender By: /s/ Joelle Schellenberg ------------------------------------- Name: Joelle Schellenberg Title: Director By: /s/ Chris A. Perks ------------------------------------- Name: Chris A. Perks Title: Executive Director 22 ABN AMRO BANK CANADA Lender By: /s/ Mark Bohn ------------------------------------- Name: Mark Bohn Title: Group Vice President By: /s/ Teresa Wu ------------------------------------- Name: Teresa Wu Title: Vice President 23 BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN ISLANDS BRANCH Lender By: /s/ Peter Obermann ------------------------------------- Name: Peter Obermann Title: Senior Vice President By: /s/ James H. Boyle ------------------------------------- Name: James H. Boyle Title: Vice President 24 THE FUJI BANK, LIMITED Lender By: /s/ Jacques Azagury ------------------------------------- Name: Jacques Azagury Title: Senior Vice President & Manager 25 CREDIT LYONNAIS (New York Branch) Lender By: /s/ Philippe Soustra ------------------------------------- Name: Philippe Soustra Title: Senior Vice President 26 TOKYO - MITSUBISHI (CANADA) Lender By: /s/ Davis J. Stewart ------------------------------------- Name: Davis J. Stewart Title: Vice President