EXHIBIT 10.2
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SCHEDULE K
NEXEN INC.
__________________________
GUARANTEE
__________________________
MADE AS OF JULY 22, 2005
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TABLE OF CONTENTS
ARTICLE 1 INTERPRETATION.......................................................1
1.1 DEFINITIONS........................................................1
1.2 HEADINGS...........................................................2
1.3 NUMBER; PERSONS; INCLUDING.........................................2
1.4 INTEREST ACT (CANADA)..............................................3
1.5 NOMINAL RATES......................................................3
ARTICLE 2 GUARANTEE............................................................3
2.1 GUARANTEE OF OBLIGATIONS...........................................3
2.2 INDEMNITY..........................................................3
2.3 GUARANTOR AS PRINCIPAL OBLIGOR.....................................3
2.4 GUARANTEE ABSOLUTE AND UNCONDITIONAL...............................4
ARTICLE 3 DEALINGS WITH THE OBLIGORS AND OTHERS................................6
3.1 NO RELEASE.........................................................6
3.2 NO EXHAUSTION OF REMEDIES..........................................6
3.3 EVIDENCE OF OBLIGATIONS............................................6
3.4 NO SET-OFF.........................................................7
ARTICLE 4 CONTINUING GUARANTEE.................................................7
4.1 CONTINUING GUARANTEE...............................................7
4.2 REVIVAL OF INDEBTEDNESS............................................7
ARTICLE 5 DEMAND FOR PAYMENT, EXPENSES AND INTEREST............................7
5.1 DEMAND FOR PAYMENT.................................................7
5.2 STAY OF ACCELERATION...............................................7
5.3 EXPENSES...........................................................8
5.4 INTEREST...........................................................8
ARTICLE 6 SUBROGATION..........................................................8
6.1 SUBROGATION........................................................8
ARTICLE 7 GENERAL..............................................................9
7.1 WAIVER OF NOTICES..................................................9
7.2 BENEFIT OF THE GUARANTEE...........................................9
7.3 FOREIGN CURRENCY OBLIGATIONS.......................................9
7.4 TAXES AND SET-OFF BY GUARANTOR.....................................9
7.5 NO WAIVER; REMEDIES...............................................10
7.6 SEVERABILITY......................................................10
7.7 AMENDMENTS AND WAIVERS............................................10
7.8 ADDITIONAL SECURITY...............................................10
7.9 NOTICES...........................................................11
7.10 ASSIGNMENT........................................................12
7.11 TIME OF ESSENCE...................................................13
7.12 FINANCIAL CONDITION OF THE OBLIGORS...............................13
7.13 ACKNOWLEDGEMENT OF DOCUMENTATION..................................13
7.14 ENTIRE AGREEMENT..................................................13
7.15 GOVERNING LAW.....................................................13
7.16 ATTORNMENT........................................................13
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NEXEN INC.
GUARANTEE
THIS GUARANTEE is made as of July 22, 2005
WHEREAS each of the Obligors is a Subsidiary of the Guarantor;
AND WHEREAS the Guarantor has agreed to provide a guarantee with respect to the
Credit Facilities provided to the Obligors by the Lenders pursuant to the Credit
Agreement;
NOW THEREFORE, in consideration of the covenants and agreements herein
contained, the sum of Cdn. $10.00 now paid by the Beneficiaries to the Guarantor
and other good and valuable consideration (the receipt and sufficiency of which
are hereby conclusively acknowledged), the Guarantor hereby covenants and agrees
with the Beneficiaries as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
(a) In this Guarantee and the recitals hereto, unless something in
the subject matter or context is inconsistent therewith:
"BENEFICIARIES" means, collectively, the U.S. Facility Lenders, the
U.K. Facility Lenders, the U.S. Agent and the U.K. Agent, and
"BENEFICIARY" means any one of such Lenders or Agents.
"BENEFICIARIES' COUNSEL" means McCarthy Tetrault LLP or such other firm
of lawyers as may be selected by the Beneficiaries from time to time.
"BORROWERS" means, collectively, the Guarantor and the Obligors and
each of their successors.
"CREDIT AGREEMENT" means the credit agreement made as of July 22, 2005
between the Borrowers, as borrowers, The Toronto-Dominion Bank and such
other financial institutions as become parties thereto, as lenders, and
The Toronto-Dominion Bank, as Canadian Agent, Toronto Dominion (Texas)
LLC, as U.S. Agent, and The Toronto-Dominion Bank, London Branch, as
U.K. Agent, as the same may be amended, modified, supplemented or
restated from time to time in accordance with the provisions thereof.
"DEFAULT RATE" means a rate per annum that is equal to (i) in respect
of amounts due in Canadian Dollars, the rate of interest then payable
under the Credit Agreement on Canadian Prime Rate Loans (without giving
effect to Section 5.12 of the Credit Agreement) plus 1.0% per annum,
(ii) in respect of amounts due in United States Dollars, the rate of
interest then payable under the Credit Agreement, on U.S. Prime Rate
Loans (without giving effect to Section 5.12 of the Credit Agreement)
plus 1.0% per annum or (iii) in respect of amounts
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due in Pounds Sterling, the rate of interest then payable under the
Credit Agreement on GBP Call Rate Loans (without giving effect to
Section 5.12 of the Credit Agreement) plus 1.0% per annum.
"DOCUMENTS" means, collectively, the Documents as defined in the Credit
Agreement (other than this Guarantee).
"GUARANTEE" means this guarantee, as amended, modified, supplemented or
restated from time to time in accordance with the provisions hereof.
"GUARANTOR" means Nexen Inc. and its successors.
"OBLIGATIONS" means, collectively and at any time and from time to
time, all of the obligations, indebtedness and liabilities (present or
future, absolute or contingent, matured or not) of each of the Obligors
to the applicable Agent and the applicable Lenders under, pursuant or
relating to the Credit Agreement and other Documents and including all
Outstanding Principal and all interest, commissions, legal and other
costs, charges and expenses payable by each of the Obligors under the
Credit Agreement and other Documents, whether the same are from time to
time reduced and thereafter increased or entirely extinguished and
thereafter incurred again.
"OBLIGORS" means, collectively, Nexen Holdings U.S.A. Inc. and Nexen
Petroleum U.K. Limited.
(b) Capitalized words and phrases used in this Guarantee and the
recitals hereto without express definition herein shall, unless
something in the subject matter or context is inconsistent
therewith, have the same defined meanings as are ascribed to
such words and phrases in the Credit Agreement. For certainty,
if the Credit Agreement ceases to be in force for any reason
whatsoever, then for all purposes hereof the aforementioned
capitalized words and phrases shall continue to have the same
defined meanings set forth in the Credit Agreement as if such
agreement remained in force in the form immediately prior to its
ceasing to be in force.
1.2 HEADINGS
The division of this Guarantee into Articles and Sections and the
insertion of headings are for convenience of reference only and shall
not affect the construction or interpretation of this Guarantee. The
terms "this Guarantee", "hereof", "hereunder" and similar expressions
refer to this Guarantee and not to any particular Article, Section or
other portion hereof and include any agreement supplemental hereto.
Unless something in the subject matter or context is inconsistent
therewith, references herein to Articles and Sections are to Articles
and Sections of this Guarantee.
1.3 NUMBER; PERSONS; INCLUDING
Words importing the singular number only shall include the plural and
VICE VERSA, words importing the masculine gender shall include the
feminine and neuter genders and vice versa and words importing persons
shall include individuals, partnerships, associations, trusts,
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unincorporated organizations and corporations and vice versa and words
and terms denoting inclusiveness (such as "include" or "includes" or
"including"), whether or not so stated, are not limited by their
context or by the words or phrases which precede or succeed them.
1.4 INTEREST ACT (CANADA)
Whenever a rate of interest hereunder is calculated on the basis of a
year (the "deemed year") which contains fewer days than the actual
number of days in the calendar year of calculation, such rate of
interest shall be expressed as a yearly rate for the purposes of the
INTEREST ACT (Canada) by multiplying such rate of interest by the
actual number of days in the calendar year of calculation and dividing
it by the number of days in the deemed year.
1.5 NOMINAL RATES
The principle of deemed reinvestment of interest shall not apply to any
interest calculation under this Guarantee; all interest payments to be
made hereunder shall be paid without allowance or deduction for deemed
reinvestment or otherwise, before and after demand, default and
judgment. The rates of interest specified in this Guarantee are
intended to be nominal rates and not effective rates and any interest
calculated hereunder shall be calculated using the nominal rate method
and not the effective rate method of calculation.
ARTICLE 2
GUARANTEE
2.1 GUARANTEE OF OBLIGATIONS
The Guarantor hereby unconditionally and irrevocably guarantees to the
Beneficiaries the payment and performance of all of the Obligations,
together with interest thereon as provided in Section 5.4.
2.2 INDEMNITY
If any or all of the Obligations are not duly paid or performed by the
Obligors or either of them, as the case may be, and are not recoverable
under Section 2.1 for any reason whatsoever, the Guarantor will, as a
separate and distinct obligation, indemnify and save harmless the
Beneficiaries from and against all losses resulting from the failure of
the Obligors or either of them, as the case may be, to pay and perform
such Obligations.
2.3 GUARANTOR AS PRINCIPAL OBLIGOR
If any or all of the Obligations are not duly paid or performed by the
Obligors or either of them, as the case may be, and are not recoverable
under Section 2.1 or the Beneficiaries are not indemnified under
Section 2.2, in each case, for any reason whatsoever, such Obligations
shall, as a separate and distinct obligation, be recoverable by the
Beneficiaries from the Guarantor as if the Guarantor were the primary
obligor and principal debtor in respect thereof and shall be paid to
the Beneficiaries forthwith after demand therefore as provided herein.
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2.4 GUARANTEE ABSOLUTE AND UNCONDITIONAL
The liability and obligations of the Guarantor hereunder shall be
continuing, unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged, limited
or otherwise affected by:
(a) any extension, other indulgence, renewal, settlement, discharge,
compromise, waiver, subordination or release in respect of any
Obligation, security, person or otherwise, including any
extension, other indulgence, renewal, settlement, discharge,
compromise, waiver, subordination or release of any of the
Obligations, covenants or undertakings of the Obligors or either
of them, as the case may be, under the Documents;
(b) any modification or amendment of or supplement to the
Obligations;
(c) any loss of or in respect of any security held by the
Beneficiaries, whether occasioned by the fault of the
Beneficiaries or otherwise, including any release,
non-perfection or invalidity of any such security;
(d) any change in the existence, structure, constitution, name,
control or ownership of the Obligors or either of them, as the
case may be, or any other person, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the
Obligors or either of them, as the case may be, or any other
person or their respective assets;
(e) the existence of any set-off, counterclaim, claim or other right
which the Guarantor, the Obligors or either of the Obligors, as
the case may be, may have at any time against the Beneficiaries
or any other person, whether in connection with the Credit
Agreement, this Guarantee or any unrelated transaction;
(f) any provision of applicable law purporting to prohibit or limit
the payment by the Obligors or either of them, as the case may
be, of any Obligation, and the foregoing is hereby waived by the
Guarantor to the extent permitted under applicable law;
(g) any limitation, postponement, prohibition, subordination or
other restriction on the right of a Beneficiary to payment of
the Obligations;
(h) any release, substitution or addition of any other guarantor of
the Obligations;
(i) any defence arising by reason of any failure of any Beneficiary
to make any presentment, demand, or protest or to give any other
notice, including notice of all of the following: acceptance of
this Guarantee, partial payment or non-payment of all or any
part of the Obligations and the existence, creation, or
incurring of new or additional Obligations;
(j) any defence arising by reason of any failure of a Beneficiary to
proceed against the Obligors or either of them, as the case may
be, or any other person, or to apply or exhaust any security
held from the Obligors or either of them, as the case may be, or
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any other person for the Obligations, to proceed against, apply
or exhaust any security held from the Guarantor or any other
person, or to pursue any other remedy available to the
Beneficiaries;
(k) any defence arising by reason of the invalidity, illegality or
lack of enforceability of the Obligations or any part thereof or
of any security or guarantee in support thereof, or by reason of
any incapacity, lack of authority, or other defence of the
Obligors or either of them, as the case may be, or any other
person, or by reason of any limitation, postponement or
prohibition on a Beneficiary's rights to payment, or the
cessation from any cause whatsoever of the liability of the
Obligors or either of them, as the case may be, or any other
person with respect to all or any part of the Obligations (other
than irrevocable payment to the Beneficiaries in full, in cash,
of the Obligations), or by reason of any act or omission of the
Beneficiaries or others which directly or indirectly results in
the discharge or release of the Obligors or either of them, as
the case may be, or any other person or of all or any part of
the Obligations or any security or guarantee therefor, whether
by contract, operation of law or otherwise;
(l) any defence arising by reason of the failure by a Beneficiary to
obtain, register, perfect or maintain a Security Interest in or
upon any property of the Obligors or either of them, as the case
may be, or any other person, or by reason of any interest of the
Beneficiaries in any property, whether as owner thereof or as
holder of a Security Interest therein or thereon, being
invalidated, voided, declared fraudulent or preferential or
otherwise set aside, or by reason of any impairment of any right
or recourse to collateral;
(m) any defence arising by reason of the failure of the
Beneficiaries to marshal assets;
(n) to the extent permitted under applicable law, any defence based
upon any failure of the Beneficiaries to give to the Obligors or
either of them, as the case may be, or the Guarantor notice of
any sale or other disposition of any property securing any or
all of the Obligations or any other guarantee thereof, or any
notice that may be given in connection with any sale or other
disposition of any such property;
(o) any defence based upon or arising out of any bankruptcy,
insolvency, reorganization, moratorium, arrangement,
readjustment of debt, liquidation or dissolution proceeding
commenced by or against the Obligors or either of them, as the
case may be, or any other person, including any discharge or bar
against collection of any of the Obligations; or
(p) any other law, event or circumstance or any other act or failure
to act or delay of any kind by the Obligors or either of them,
as the case may be, the Beneficiaries or any other person, which
might, but for the provisions of this Section, constitute a
legal or equitable defence to or discharge, limitation or
reduction of the Guarantor's obligations hereunder, other than
as a result of the payment or extinguishment in full of the
Obligations.
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The foregoing provisions apply and the foregoing waivers, to the extent
permitted under applicable law, shall be effective even if the effect
of any action or failure to take action by the Beneficiaries is to
destroy or diminish the Guarantor's subrogation rights, the Guarantor's
right to proceed against the Obligors or either of them, as the case
may be, for reimbursement, the Guarantor's right to recover
contribution from any other guarantor or any other right or remedy of
the Guarantor.
ARTICLE 3
DEALINGS WITH THE OBLIGORS AND OTHERS
3.1 NO RELEASE
The Beneficiaries, without releasing, discharging, limiting or
otherwise affecting in whole or in part the Guarantor's liability and
obligations hereunder, may:
(a) grant time, renewals, extensions, indulgences, releases and
discharges to the Obligors or either of them, as the case may
be, or any other guarantor or endorser;
(b) take or abstain from taking security or collateral from the
Obligors or either of them, as the case may be, or any other
guarantor or endorser or from perfecting security or collateral
of the Obligors or either of them, as the case may be, or any
other guarantor or endorser;
(c) accept compromises from the Obligors or either of them, as the
case may be, or any other guarantor or endorser;
(d) subject to the Documents, apply all money at any time received
from the Obligors or either of them, as the case may be, or from
security upon such part of the Obligations as the Beneficiaries
may see fit or change any such application in whole or in part
from time to time as the Beneficiaries may see fit; or
(e) otherwise deal with each of the Obligors or either of them, as
the case may be, and all other persons and security as the
Beneficiaries may see fit.
3.2 NO EXHAUSTION OF REMEDIES
The Beneficiaries shall not be bound or obligated to exhaust their
recourse against the Obligors or either of them, as the case may be, or
other persons or any securities or collateral it may hold or take any
other action (other than to make demand pursuant to Article 5) before
the Beneficiaries shall be entitled to demand, enforce and collect
payment from the Guarantor hereunder.
3.3 EVIDENCE OF OBLIGATIONS
Any account settled or stated in writing by or between a Beneficiary or
the Beneficiaries, as the case may be, and the Obligors or either of
them, as the case may be, shall be PRIMA FACIE evidence that the
balance or amount thereof appearing due to the same is so due.
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3.4 NO SET-OFF
In any claim by the Beneficiaries against the Guarantor hereunder, the
Guarantor shall not claim or assert any set-off, counterclaim, claim or
other right that the Obligors or either of them, as the case may be, or
the Guarantor may have against one or more of the Beneficiaries.
ARTICLE 4
CONTINUING GUARANTEE
4.1 CONTINUING GUARANTEE
This Guarantee shall be a continuing guarantee and shall continue to be
effective even if at any time any payment of any of the Obligations is
rendered unenforceable or is rescinded or must otherwise be returned by
any Beneficiary for any reason whatsoever (including the insolvency,
bankruptcy or reorganization of the Obligors or either of them, as the
case may be), all as though such payment had not been made.
4.2 REVIVAL OF INDEBTEDNESS
If at any time, all or any part of any payment previously received by a
Beneficiary and applied to any Obligation must be rescinded or returned
by the Beneficiary for any reason whatsoever (including the insolvency,
bankruptcy or reorganization of the Obligors or either of them, as the
case may be), such Obligation shall, for the purpose of this Guarantee,
to the extent that such payment must be rescinded or returned, be
deemed to have continued in existence, notwithstanding such application
by the Beneficiary, and this Guarantee shall continue to be effective
or be reinstated, as the case may be, as to such Obligation as though
such application by the Beneficiary had not been made.
ARTICLE 5
DEMAND FOR PAYMENT, EXPENSES AND INTEREST
5.1 DEMAND FOR PAYMENT
The Beneficiaries shall be entitled to make demand upon the Guarantor
at any time during the continuance of a Event of Default and upon any
such demand the Beneficiaries may (provided a written notice of
acceleration has been given in accordance with Section 11.2 of the
Credit Agreement, in the case of an Event of Default specified in
Sections 11.1(a) to (d), inclusive, or Sections 11.1(g) to (m),
inclusive, of the Credit Agreement) treat all Obligations as due and
payable and may forthwith collect from the Guarantor all Obligations.
The Guarantor shall make payment to or performance in favour of the
Beneficiaries of all Obligations forthwith after demand therefor is
made upon the Guarantor by the Beneficiaries as aforesaid.
5.2 STAY OF ACCELERATION
If acceleration of the time for payment of any amount payable by the
Obligors or either of them, as the case may be, in respect of the
Obligations is stayed upon the insolvency,
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bankruptcy, arrangement or reorganization of the Obligors or either of
them, as the case may be, or any moratorium affecting the payment of
the Obligations, all such amounts that would otherwise be subject to
acceleration shall nonetheless be payable by the Guarantor hereunder
forthwith on demand by the Beneficiaries.
5.3 EXPENSES
The Guarantor shall pay to the Beneficiaries all reasonable out of
pocket costs and expenses, including all reasonable legal fees (on a
solicitor and his own client basis) and other expenses incurred by the
Beneficiaries from time to time in the enforcement, realization and
collection of or in respect of this Guarantee. All such amounts shall
be payable by the Guarantor on demand by the Beneficiaries.
5.4 INTEREST
Any payment obligation comprised in the Obligations guaranteed
hereunder which is not paid when due hereunder shall bear interest, to
the extent not already included in the Obligations, both before and
after default or judgment, from the date of demand pursuant to Section
5.1 to the date of payment at the rate or rates provided in the
relevant Document for such Obligations or, in the event no such rate is
provided for therein, at a rate per annum that is equal to the Default
Rate. Any other amounts payable pursuant hereto, including pursuant to
Section 5.3, which are not paid when due hereunder shall bear interest,
both before and after default or judgment, from the date of demand
pursuant to Section 5.1 to the date of payment or reimbursement thereof
by the Guarantor at a rate per annum that is equal to the Default Rate.
All such interest shall accrue daily and shall be payable by the
Guarantor on demand by the Beneficiaries.
ARTICLE 6
SUBROGATION
6.1 SUBROGATION
(a) Until all the Obligations have been irrevocably paid in full in
cash, the Guarantor shall have no right of subrogation to, and
waives to the fullest extent permitted by applicable law, any
right to enforce any remedy which the Beneficiaries now have or
may hereafter have against the Obligors or either of them, as
the case may be, in respect of the Obligations, and until such
time the Guarantor waives any benefit of, and any right to
participate in, any security, now or hereafter held by the
Beneficiaries for the Obligations.
(b) If (i) the Guarantor performs or makes payment to the
Beneficiaries of all amounts owing by the Guarantor under this
Guarantee, (ii) the Obligations are performed and irrevocably
paid in full and (iii) each of the Credit Facilities has been
fully cancelled in accordance with the Credit Agreement, then
the Beneficiaries will, at the Guarantor's request, execute and
deliver to the Guarantor appropriate documents, without recourse
and without representation and warranty, necessary to evidence
the transfer by subrogation to the Guarantor of the
Beneficiaries' interest in the
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Obligations and any security held therefor resulting from such
performance or payment by the Guarantor.
ARTICLE 7
GENERAL
7.1 WAIVER OF NOTICES
The Guarantor hereby waives promptness, diligence, presentment, demand
of payment, notice of acceptance and any other notice with respect to
this Guarantee and the obligations guaranteed hereunder, except for the
demand pursuant to Section 5.1.
7.2 BENEFIT OF THE GUARANTEE
This Guarantee shall enure to the benefit of the respective successors
and permitted assigns of the Beneficiaries and be binding upon the
successors of the Guarantor.
7.3 FOREIGN CURRENCY OBLIGATIONS
The Guarantor shall make payment relative to each Obligation in the
currency (the "original currency") in which the Obligors or either of
them, as the case may be, are required to pay such Obligation. If the
Guarantor makes payment relative to any Obligation to the Beneficiaries
in a currency (the "other currency") other than the original currency
(whether voluntarily or pursuant to an order or judgment of a court or
tribunal of any jurisdiction), such payment shall constitute a
discharge of the liability of the Guarantor hereunder in respect of
such Obligation only to the extent of the amount of the original
currency which the Beneficiaries are able to purchase with the amount
of other currency they receive on the date of receipt in accordance
with normal practice. If the amount of the original currency which the
Beneficiaries are able to purchase is less than the amount of such
currency originally due in respect of the relevant Obligation, the
Guarantor shall indemnify and save the Beneficiaries harmless from and
against any loss or damage arising as a result of such deficiency. This
indemnity shall constitute an obligation separate and independent from
the other obligations contained in this Guarantee, shall give rise to a
separate and independent cause of action, shall apply irrespective of
any indulgence granted by the Beneficiaries and shall continue in full
force and effect notwithstanding any judgment or order in respect of
any amount due hereunder or under any judgment or order. A certificate
of a Beneficiary as to any such loss or damage shall constitute PRIMA
FACIE evidence thereof, in the absence of manifest error.
7.4 TAXES AND SET-OFF BY GUARANTOR
All payments by the Guarantor under this Guarantee, whether in respect
of principal, interest, interest on overdue and unpaid interest, fees
or any other Obligations, shall be made in full without any deduction
or withholding (whether in respect of set-off, counterclaim, duties,
Taxes, charges or otherwise whatsoever) unless the Guarantor is
prohibited by applicable laws from doing so, in which event the
Guarantor shall:
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(a) ensure that the deduction or withholding does not exceed the
minimum amount legally required;
(b) forthwith pay to the Beneficiaries such additional amount so
that the net amount received by the Beneficiaries will equal the
full amount which would have been received by it had no such
deduction or withholding been made;
(c) pay to the relevant taxation or other authorities, within the
period for payment required by applicable laws, the full amount
of the deduction or withholding (including the full amount of
any deduction or withholding from any additional amount paid
pursuant to this Section); and
(d) furnish to the Beneficiaries promptly, as soon as available, an
official receipt of the relevant taxation or other authorities
involved for all amounts deducted or withheld as aforesaid.
7.5 NO WAIVER; REMEDIES
No failure on the part of the Beneficiaries to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any right hereunder
preclude the other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
7.6 SEVERABILITY
If any provision of this Guarantee is determined to be invalid or
unenforceable in whole or in part, such invalidity or unenforceability
shall attach only to such provision or part thereof and the remaining
part of such provision and all other provisions hereof shall continue
in full force and effect.
7.7 AMENDMENTS AND WAIVERS
Any provision of this Guarantee may be amended, waived or a consent
given in respect thereof with the concurrence of the Guarantor and both
the U.S. Agent and the U.K. Agent on behalf of the Beneficiaries. Any
waiver and any consent by such Agents on behalf of the Beneficiaries
under any provision of this Guarantee must be in writing signed by such
Agents and may be given subject to any conditions thought fit by such
Agents. Any waiver or consent shall be effective only in the instance
and for the purpose for which it is given.
7.8 ADDITIONAL SECURITY
This Guarantee is in addition and without prejudice to any security of
any kind (including, without limitation, other guarantees) now or
hereafter held by the Beneficiaries and any other rights or remedies
they might have.
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7.9 NOTICES
Any demand, notice or other communication (hereinafter in this Section
referred to as a "Communication") to be given in connection with this
Guarantee shall be given in writing and may be given by personal
delivery, telecopier or by registered mail addressed to the recipient
as follows:
To the U.S. Agent on behalf of the Beneficiaries under the U.S.
Facility:
Toronto Dominion (Texas) LLC
c/o The Toronto-Dominion Bank
Royal Trust Tower
77 King Street West, 18th Floor
Toronto, Ontario
M5K 1A2
Attention: U.S. Agency Services
Telecopy No.: (416) 307-3826
with a copy to:
TD Securities
Corporate Credit
800, 324 - 8th Avenue S.W.
Calgary, Alberta
T2P 2Z2
Attention: Vice President and Director
Telecopy No.: (403) 292-2772
To the U.K. Agent on behalf of the Beneficiaries under the U.K.
Facility:
The Toronto-Dominion Bank, London Branch
c/o The Toronto-Dominion Bank
Royal Trust Tower
77 King Street West, 18th Floor
Toronto, Ontario
M5K 1A2
Attention: U.K. Agency Services
Telecopy No.: (416) 982-8619
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with a copy to:
TD Securities
Corporate Credit
800, 324 - 8th Avenue S.W.
Calgary, Alberta
T2P 2Z2
Attention: Vice President and Director
Telecopy No.: (403) 292-2772
To the Guarantor:
Nexen Inc.
2900, 801 - 7th Avenue S.W.
Calgary, Alberta
T2P 3P7
Telecopy No.: (403) 232-0599
Attention: Treasurer
with a copy to the attention of the Senior Vice-President and General
Counsel at the above address, telecopy no.: (403) 699-5743
or such other address or telecopy number as may be designated by notice
by any party to the other. Any Communication given by personal delivery
or telecopier shall be conclusively deemed to have been given on the
day of actual delivery or transmittal thereof and, if given by
registered mail, on the third day following the deposit thereof in the
mail. If the party giving any Communication knows or ought reasonably
to know of any difficulties with the postal system which might affect
the delivery of mail, any such Communication shall not be mailed but
shall be given by personal delivery or telecopier.
7.10 ASSIGNMENT
The rights of the Beneficiaries under this Guarantee may be assigned by
the Beneficiaries in accordance with the provisions of the Credit
Agreement and without the consent of the Obligors or either of them, as
the case may be, or the Guarantor during the continuance of an Event of
Default and, at all other times, with the prior written consent of the
Guarantor (such consent not to be unreasonably withheld). Except in
connection with the transactions permitted by Section 10.2(d) of the
Credit Agreement, the Guarantor may not assign its obligations under
this Guarantee.
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7.11 TIME OF ESSENCE
Time is of the essence with respect to this Guarantee and the time for
performance of the obligations of the Guarantor under this Guarantee
may be strictly enforced by the Beneficiaries.
7.12 FINANCIAL CONDITION OF THE OBLIGORS
The Guarantor is fully aware of the financial condition of each of the
Obligors and acknowledges that it shall receive a benefit from the
Beneficiaries entering into the Documents to which the Beneficiaries
are a party. The Guarantor assumes all responsibility for being and
keeping itself informed of each of the Obligors' financial condition
and assets, and of all other circumstances bearing upon the risk of
non-payment or non-performance of the Obligations and the nature, scope
and extent of the risks which Guarantor assumes and incurs hereunder,
and agrees that the Beneficiaries shall not have a duty to advise
Guarantor of information known to any of them regarding such
circumstances or risks.
7.13 ACKNOWLEDGEMENT OF DOCUMENTATION
The Guarantor hereby acknowledges receipt of a true and complete copy
of the Documents and all of the terms and conditions thereof.
7.14 ENTIRE AGREEMENT
This Guarantee and the Documents constitute the entire agreement
between the Beneficiaries and the Guarantor with respect to the subject
matter hereof and cancel and supersede any prior understandings and
agreements between such parties with respect thereto. There are no
representations, warranties, terms, conditions, undertakings or
collateral agreements, expressed, implied or statutory, between such
parties other than as expressly set forth herein or therein.
7.15 GOVERNING LAW
This Guarantee shall be governed by and construed in accordance with
the laws of the Province of Alberta and the federal laws of Canada
applicable therein.
7.16 ATTORNMENT
The Guarantor and each of the Beneficiaries hereby attorn and submit to
the jurisdiction of the courts of the Province of Alberta in regard to
legal proceedings relating to this Guarantee. For the purpose of all
such legal proceedings, the courts of the Province of Alberta shall
have jurisdiction to entertain any action arising under this Guarantee.
Notwithstanding the foregoing, nothing in this Section shall be
construed nor operate to limit the right of the Guarantor or the
Beneficiaries to commence any action relating hereto in any other
jurisdiction, nor to limit the right of the courts of any other
jurisdiction to take jurisdiction over any action or matter relating
hereto.
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IN WITNESS WHEREOF the Guarantor has executed this Guarantee.
NEXEN INC.
Per: /s/ Marvin F. Romanow
----------------------------
Name: Marvin F. Romanow
Title: Executive Vice President
and Chief Financial Officer
Per: /s/ Una Power
----------------------------
Name: Una Power
Title: Treasurer