EX-4 12 ex4-50form10k_2003.txt EXHIBIT 4.50 EXHIBIT 4.50 ------------ FOURTH AMENDING AGREEMENT THIS AGREEMENT is made as of November 4, 2003 BETWEEN: NEXEN INC., a corporation subsisting under the laws of Canada, (hereinafter referred to as the "Borrower"), OF THE FIRST PART, - and - THE FINANCIAL INSTITUTIONS SET FORTH ON THE SIGNATURE PAGES HEREOF UNDER THE HEADING "LENDERS:" (hereinafter sometimes collectively referred to as the "Lenders" and sometimes individually referred to as a "Lender"), OF THE SECOND PART, - and - THE TORONTO-DOMINION BANK, a Canadian chartered bank, as agent of the Lenders (hereinafter referred to as the "Agent"), OF THE THIRD PART. WHEREAS the parties hereto entered into the Restated Credit Agreement; AND WHEREAS the parties hereto have agreed to amend and supplement certain provisions of the Restated Credit Agreement as hereinafter set forth; NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby conclusively acknowledged by each of the parties hereto, the parties hereto covenant and agree as follows: 1. INTERPRETATION 1.1. In this Agreement and the recitals hereto, unless something in the subject matter or context is inconsistent therewith: "AGREEMENT" means this agreement, as amended, modified, supplemented or restated from time to time. -2- "RESTATED CREDIT AGREEMENT" means the restated credit agreement made as of December 29, 1988 and amended and restated as of November 17, 2000 between the Borrower, as borrower, the Lenders and the Agent, as amended to the date hereof. 1.2. Capitalized terms used herein without express definition shall have the same meanings herein as are ascribed thereto in the Restated Credit Agreement. 1.3. The division of this Agreement into Sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The terms "this Agreement", "hereof", "hereunder" and similar expressions refer to this Agreement and not to any particular Section or other portion hereof and include any agreements supplemental hereto. 1.4. Schedule A attached to this Agreement is incorporated by reference and shall be deemed to be a part hereof. 1.5. This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein. 2. AMENDMENT TO DEFINITION OF CAPITAL SECURITIES 2.1. Section 1.1 of the Restated Credit Agreement is hereby amended by deleting the existing definition of "Capital Securities" in its entirety and substituting therefor the definition of "Capital Securities" set forth in Schedule A attached hereto. 3. REPRESENTATIONS AND WARRANTIES 3.1. The Borrower hereby represents and warrants as follows to each Lender and the Agent and acknowledges and confirms that each Lender and the Agent is relying upon such representations and warranties: (a) CAPACITY, POWER AND AUTHORITY (i) It is duly incorporated and is validly subsisting under the laws of its jurisdiction of incorporation or creation and has all the requisite corporate capacity, power and authority to carry on its business as presently conducted and to own its property; and (ii) It has the requisite corporate capacity, power and authority to execute and deliver this Agreement. (b) AUTHORIZATION; ENFORCEABILITY It has taken or caused to be taken all necessary action to authorize, and has duly executed and delivered, this Agreement, and this Agreement is a legal, valid and binding obligation of it, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, winding up, insolvency, moratorium or other laws of general application affecting the enforcement of -3- creditors' rights generally and to the equitable and statutory powers of the courts having jurisdiction with respect thereto. 3.2. The representations and warranties set out in this Agreement shall survive the execution and delivery of this Agreement and the making of each Drawdown, notwithstanding any investigations or examinations which may be made by the Agent, the Lenders or Lenders' Counsel. Such representations and warranties shall survive until the Restated Credit Agreement has been terminated. 4. CONFIRMATION OF RESTATED CREDIT AGREEMENT AND OTHER DOCUMENTS The Restated Credit Agreement and the other Documents and all covenants, terms and provisions thereof, except as expressly amended and supplemented by this Agreement, shall be and continue to be in full force and effect and the Restated Credit Agreement, as amended and supplemented by this Agreement, and each of the other Documents is hereby ratified and confirmed and shall from and after the date hereof continue in full force and effect, in the case of the Restated Credit Agreement as herein amended and supplemented, with such amendments and supplements being effective as of the date hereof. 5. FURTHER ASSURANCES The parties hereto shall from time to time do all such further acts and things and execute and deliver all such documents as are required in order to effect the full intent of and fully perform and carry out the terms of this Agreement. 6. COUNTERPARTS This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together shall be deemed to constitute one and the same instrument, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart. This Agreement may be executed and delivered by facsimile, which when so executed and delivered shall constitute a binding agreement of the parties hereto. [THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY] -4- IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the date first above written. BORROWER: AGENT: NEXEN INC. THE TORONTO-DOMINION BANK, AS AGENT By: /s/ Una Power By: /s/ Michael A. Freeman ---------------------------- ---------------------------- Name: Una Power Name: Michael A. Freeman Title: Treasurer Title: Vice President, Loan Syndications - Agency By: /s/ Rick C. Beingessner By: ---------------------------- ---------------------------- Name: Rick C. Beingessner Name: Title: Assistant Secretary Title: LENDERS: THE TORONTO-DOMINION BANK ROYAL BANK OF CANADA By: /s/ Dean Ariss By: /s/ David Foltz ---------------------------- ---------------------------- Name: Dean Ariss Name: David Foltz Title: Managing Director Title: Senior Manager By: /s/ Kevin Kynoch By: ---------------------------- ---------------------------- Name: Kevin Kynoch Name: Title: Associate - Title: Corporate Credit THE BANK OF NOVA SCOTIA CANADIAN IMPERIAL BANK OF COMMERCE By: /s/ Dan W. Lindquist By: /s/ Chris A. Perks ---------------------------- ---------------------------- Name: Dan W. Lindquist Name: Chris A. Perks Title: Director Title: Executive Director By: /s/ R.L. Mack By: /s/ David J. Swain ---------------------------- ---------------------------- Name: R.L. Mack Name: David J. Swain Title: Associate Title: Managing Director BANK OF AMERICA, N.A., CANADA BRANCH BNP PARIBAS (CANADA) By: /s/ Nelson Lam By: /s/ Jean-Phillippe Cadot ---------------------------- ---------------------------- Name: Nelson Lam Name: Jean-Phillipe Cadot Title: Vice President Title: Vice President Energy & Project Finance By: By: /s/ Michael Gosselin ---------------------------- ---------------------------- Name: Name: Michael Gosselin Title: Title: Director SCHEDULE A TO THE FOURTH AMENDING AGREEMENT "CAPITAL SECURITIES" means securities, including debt securities, issued by the Borrower which at all times have the following characteristics: (a) an initial final maturity extending beyond the last Maturity Date applicable to any Lender or Lenders; (b) no scheduled payments of principal thereunder prior to the last Maturity Date applicable to any Lender or Lenders; (c) a Default, Event of Default, acceleration of the payment of the Obligations or enforcement of the rights and remedies of the Lenders under the Documents or a default, event of default, acceleration or similar circumstance under any other Senior Debt shall not (i) cause a default or event of default (with the passage of time or otherwise) under such securities or the indenture governing the same, or (ii) cause or permit the obligations thereunder to be due and payable prior to the stated maturity thereof; (d) payments of principal due and payable thereunder can be satisfied by delivering common shares in the capital of the Borrower in accordance with the indenture governing such securities; (e) all amounts payable in respect to such securities are subordinate and junior in right of payment to the prior payment in full of all Obligations and any other Senior Debt upon a payment default on any Senior Debt in respect of which any applicable grace period has ended and such default has not been cured or waived or ceased to exist or the acceleration of any Senior Debt which has not been rescinded; and (f) such securities shall not be entitled to any distribution upon the distribution of assets of the Borrower to creditors for any reason (except in connection with any proceeding permitted under Section 9.2(d)), including dissolution, bankruptcy or any such similar proceedings, until all Obligations and all other Senior Debt have been paid in full; provided that, for certainty, Capital Securities shall include the Borrower's 9.75% Junior Subordinated Debentures due October 30, 2047 issued pursuant to an Indenture dated as of October 30, 1998 between the Borrower and IBJ Schroder Bank & Trust Company, the Borrower's 9.375% Junior Subordinated Debentures due March 31, 2048 issued pursuant to an Indenture dated as of February 9, 1999 between the Borrower and IBJ Whitehall Bank and Trust Company and the Borrower's 7.35% Subordinated Notes due November 1, 2043 issued pursuant to a Subordinated Debt Indenture dated as of November 4, 2003 between the Borrower and Deutsche Bank Trust Company Americas, provided that such Debentures and Notes at all times have all of the characteristics described in subparagraphs (a) to (f), inclusive, above of this definition.