THIRD AMENDMENT TO 5-YEAR REVOLVING CREDIT AGREEMENT dated as of March 19, 2007 among XTO ENERGY INC., as Borrower, JPMORGAN CHASE BANK, N.A., as Administrative Agent, and The Lenders Party Hereto
EXHIBIT
10.1
THIRD
AMENDMENT TO
dated
as of
March
19, 2007
among
as
Borrower,
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent,
and
The
Lenders Party Hereto
BANK
OF AMERICA, N.A.,
BNP
PARIBAS,
and
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
Co-Syndication Agents
and
THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD. HOUSTON AGENCY
CITIBANK,
N.A.,
BMO
CAPITAL MARKETS FINANCING, INC.,
and
SUNTRUST
BANK,
as
Co-Documentation Agents
X.X.
XXXXXX SECURITIES INC. and BANC OF AMERICA SECURITIES LLC,
as
Co-Arrangers and Joint Bookrunners
THIRD
AMENDMENT TO 5-YEAR REVOLVING CREDIT AGREEMENT
THIS
THIRD AMENDMENT TO 5-YEAR REVOLVING CREDIT AGREEMENT
(this “Third Amendment”) dated as of March 19, 2007, is among XTO
ENERGY INC., a Delaware corporation, as the Borrower, JPMORGAN
CHASE BANK, N.A., as Administrative Agent,
JPMORGAN CHASE BANK, N.A., BANK
OF
AMERICA, N.A., and U.S. BANK NATIONAL ASSOCIATION, as
Issuing Banks, and the Lenders party hereto.
R
E C I T A L S
A. The
Borrower, the Administrative Agent and the Lenders are parties to that certain
Amended and Restated 5-Year Revolving Credit Agreement dated as of April 1,
2005
(as amended by the First Amendment to 5-Year Revolving Credit Agreement dated
as
of March 10, 2006 and the Second Amendment to 5-Year Revolving Credit Agreement
dated as of October 25, 2006, the “Credit
Agreement”),
pursuant to which the Lenders have made certain loans to and extensions of
credit for the account of the Borrower.
B. The
Borrower has requested and the Lenders have agreed to amend certain provisions
of the Credit Agreement.
C. NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereto agree as follows:
Section
1. Defined
Terms.
Each
capitalized term used herein but not otherwise defined herein has the meaning
given such term in the Credit Agreement. Unless otherwise indicated, all article
and section references in this Third Amendment refer to articles and sections
of
the Credit Agreement.
Section
2. Amendments
to Credit Agreement.
2.1 Amendments
to Section 1.01.
(a) The
definition of “Affiliate”
is
hereby amended in its entirety to read as follows:
“Affiliate”
means,
with respect to a specified 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.
(b) The
definition of “Agreement”
is
hereby amended in its entirety to read as follows:
“Agreement”
means
this 5-Year Revolving Credit Agreement, as amended by the First Amendment,
the
Second Amendment and the Third Amendment, as the same may from time to time
be
amended,
modified,
restated, or replaced from time to time.
(c) The
definition of “Consolidated
Tangible Net Worth”
is
hereby deleted in its entirety.
(d) The
definition of “Material
Indebtedness”
is
hereby amended by replacing “$50,000,000” in the fourth line thereof with
“$100,000,000”.
(e) The
definition of “Oil
and Gas Properties”
is
hereby amended by deleting the words “all interests held in Oil and Gas Royalty
Trusts/MLP’s whether presently existing or hereafter created;” beginning in the
sixth
line
thereof.
(f) The
definition of “Oil
and Gas Royalty Trust/MLP”
is
hereby deleted in its entirety.
(g) The
definition of “Permitted
Encumbrances”
is
hereby amended by deleting clause (m) thereof and re-lettering clause (n)
thereof to be clause (m).
(h) The
definition of “Subsidiary”
is
hereby amended in its entirety to read as follows:
“Subsidiary”
means
any subsidiary of the Borrower.
(i) The
definition of “Subsidiary
Guaranty”
is
hereby amended by inserting the word “Restricted” immediately prior to the word
“Subsidiary” in the second line thereof.
(j) The
definition of “Total
Cap”
is
hereby amended by replacing the words “Consolidated Tangible Net Worth”
contained therein with the words “Consolidated Net Worth”.
(k) The
definition of “Total
Debt”
is
hereby amended in its entirety to read as follows:
“Total
Debt”
means
as of any date of determination, all Indebtedness (without duplication) of
the
Borrower and the Restricted Subsidiaries on a consolidated basis (including
any
Indebtedness proposed to be incurred on such date of determination and excluding
(i) all Indebtedness to be paid on such date of determination with the proceeds
thereof, (ii) any contingent Indebtedness described in clause (g) of the
definition of Indebtedness so long as such contingent Indebtedness does not
secure or otherwise provide credit support for any other Indebtedness and (iii)
the aggregate Hybrid Equity Credit for all Hybrid Equity
Securities).
(l) The
following definitions are hereby added where alphabetically appropriate to
read
as follows:
“Consolidated
Net Worth”
means,
at any date, (i) the consolidated stockholders’ equity (plus to the extent not
included any equity being issued within three Business Days of such date) of
the
Borrower and its Restricted Subsidiaries (determined in accordance with GAAP);
less (ii) the non-cash gains
2
related
to derivatives, net of associated taxes, included in the consolidated income
statement of the Borrower after December 31, 2004 and the other comprehensive
income component of consolidated stockholders’ net
equity of Borrower and its Restricted Subsidiaries; plus (iii) the aggregate
amount of any non-cash write downs, charges and losses, net of associated
taxes,
included in, but not limited to, those under Statements of
Financial Accounting standards Nos. 19, 109, 123R, 142, 143 and 144, (and
any
statements replacing, modifying or superceding such statement), on a
consolidated basis, by the Borrower and its Restricted Subsidiaries after December
31,
2004; plus (iv) the non-cash losses related to derivatives, net of associated
taxes, included in the consolidated income statement of the Borrower after
December 31, 2004 and the other comprehensive income component of consolidated
stockholders’ net equity of the Borrower and its Restricted
Subsidiaries.
“Hybrid
Equity Credit”
means,
on any date, with respect to any Hybrid Equity Securities, the aggregate
principal amount of such Hybrid Equity Securities that is treated as equity
by
S&P and Xxxxx’x based on the classifications for such Hybrid Equity
Securities issued by S&P and Xxxxx’x; provided that if the classifications
for such Hybrid Equity Securities issued by S&P and Xxxxx’x are different,
then the higher classification (i.e., the classification that provides for
the
most equity) will apply to determine the amount of “Hybrid Equity Credit” for
such Hybrid Equity Securities.
“Hybrid
Equity Securities”
means,
on any date (the “determination date”), any securities issued by the Borrower or
any of the Restricted Subsidiaries or a financing vehicle of the Borrower or
any
of the Restricted Subsidiaries, other than common stock, that meet the following
criteria: (a) (i) the Borrower demonstrates that such securities are classified,
at the time they are issued, as possessing a minimum of “intermediate equity
content” by S&P and “Basket C equity credit” by Xxxxx’x (or the equivalent
classifications then in effect by such agencies) and (ii) on such determination
date such securities are classified as possessing a minimum of “intermediate
equity content” by S&P or “Basket C equity credit” by Xxxxx’x (or the
equivalent classifications then in effect by such agencies) and (b) such
securities require no repayments or prepayments and no mandatory redemptions
or
repurchases, in each case, prior to at least 91 days after the later of the
termination of the Commitments and the repayment in full of all obligations
of
the Borrower under this Agreement. As used in this definition, “mandatory
redemption” shall not include conversion of a security into common
stock.
“Third
Amendment”
means
the Third Amendment to 5-Year Revolving Credit Agreement dated as of March
19,
2007 among the Borrower and the Lenders party thereto.
2.2 Amendment
to Section 2.02(a).
Section
2.02(a) is hereby amended by replacing “$2,000,000,000” in the tenth line
thereof with “$3,000,000,000”.
3
2.3 Amendment
to Section 3.06(a). Section 3.06(a) is hereby amended by inserting the word
“Restricted” immediately prior to the word “Subsidiaries” in the third line
thereof.
2.4 Amendment
to Section 3.06(b). Section 3.06(b) is hereby amended by inserting the word
“Restricted” immediately prior to the word “Subsidiaries” in the third line
thereof.
2.5 Amendment
to Section 3.08. Section 3.08 is hereby amended in its entirety to read as
follows:
“Section
3.08 Investment
Company Status.
Neither
the Borrower nor any of its Restricted Subsidiaries is an “investment company”
as defined in, or subject to regulation under, the Investment Company Act of
1940.”
2.6 Amendment
to Section 5.01(e).
Section
5.01(e) is hereby amended by inserting the word “Restricted” immediately prior
to the word “Subsidiary” in the second line thereof.
2.7 Amendment
to Section 5.01(g). Section 5.01(g) is hereby amended by inserting the word
“Restricted” immediately prior to the word “Subsidiary” in the second line
thereof.
2.8 Amendment
to Section 5.02(c). Section 5.02(c) is hereby amended by (i) deleting the words
“and its Subsidiaries” in the third line thereof and substituting the words “or
any ERISA Affiliate (or any combination thereof)” therefor and (ii) replacing
“$25,000,000” in the third line thereof with “$100,000,000”.
2.9 Amendment
to Section 5.04. Section 5.04 is hereby amended by inserting the word
“Restricted” immediately prior to the word “Subsidiaries” in the second line
thereof and immediately prior to the word “Subsidiary” in the fifth line
thereof.
2.10 Amendment
to Section 5.06. Section 5.06 is hereby amended by adding the word “Restricted”
immediately prior to the word “Subsidiaries” in the second line
thereof.
2.11 Amendment
to Section 5.07. Section 5.07 is hereby amended by adding the word “Restricted”
immediately prior to the word “Subsidiaries” in the second line
thereof.
2.12 Amendment
to Section 5.10. Section 5.10 is hereby amended by deleting the words “(other
than Indebtedness incurred by an Oil and Gas Royalty Trust/MLP permitted by
clause (d) of the definition of “Oil and Gas Royalty Trust/MLP”)” beginning in
the third line thereof.
2.13 Amendment
to Section 6.04. Section 6.04 is hereby amended by replacing “0.60” in the
second line thereof with “0.65”.
2.14 Amendment
to Section 6.06. Section 6.06 is hereby amended by deleting the words (i)
“(either directly or indirectly through its ownership of Equity Interests in
Oil
and Gas Royalty Trust/MLPs)” beginning in the third line thereof and (ii)
“(other than those in respect of Equity Interests of the Borrower or any of
its
Subsidiaries)” beginning in the fifth line thereof.
4
2.15 Amendment
to Section 6.08. Section 6.08 is hereby amended by inserting the word
“Restricted” immediately prior to the word “Subsidiary” in both the twelfth and
thirteenth lines thereof.
2.16 Amendment
to Article VII. Clause (k) of Article VII is hereby amended by replacing
“$75,000,000” in the second line thereof with “$100,000,000”.
Section
3. Conditions
Precedent.
This
Third Amendment shall not become effective until the date on which each of
the
following conditions is satisfied (or waived in accordance with Section 9.02(b)
of the Credit Agreement) (the “Effective
Date”):
3.1 The
Administrative Agent and the Lenders shall have received all fees and other
amounts due and payable, if any, in connection with this Third Amendment on
or
prior to the Effective Date.
3.2 The
Administrative Agent shall have received from the Required Lenders and the
Borrower, counterparts (in such number as may be requested by the Administrative
Agent) of this Third Amendment signed on behalf of such Persons.
3.3 The
Administrative Agent shall have received a favorable written opinion (addressed
to the Administrative Agent and the Lenders and dated the Effective Date) of
counsel for the Borrower, in form and substance satisfactory to the
Administrative Agent.
3.4 The
Administrative Agent shall have received such other documents as the
Administrative Agent or special counsel to the Administrative Agent may
reasonably request.
3.5 No
Default shall have occurred and be continuing, after giving effect to the terms
of this Third Amendment.
Section
4. Miscellaneous.
4.1 Commitment
Increase
Pursuant to Section 2.02. The Borrower has heretofor requested pursuant to
Section 2.02 that the aggregate amount of the Lenders’ Commitments be increased
to $2,000,000,000. Pursuant to Section 2.02, effective on the Effective Date
(which date shall constitute the “Commitment Increase Effective Date” for
purposes of Section 2.02): (a) the aggregate amount of the Lenders’ Commitments
shall be increased to $2,000,000,000 and (b) the Commitment of each Lender
shall, without any further action (including, without the execution of any
Assignment and Assumption or any other documentation or the payment of any
processing and recordation fee to the Administrative Agent), be the Commitment
specified for such Lender on the attached Schedule 2.01; and Schedule 2.01
of
the Credit Agreement is hereby replaced with the attached Schedule 2.01. Xxxxxxx
Street Commitment Corporation is hereby added as a CI Lender with the Commitment
specified for it on the attached Schedule 2.01. Each of the Administrative
Agent, the Issuing Banks and the Lenders hereby waives all timing and notice
requirements of Section 2.02, including, without limitation, the obligation
of
the Borrower to deliver a Notice of Commitment Increase (and the Administrative
Agent’s obligation to respond thereto). Except as expressly waived as aforesaid,
the provisions of Section 2.02 shall otherwise apply (including the provisions
of Section 2.02(c)).
5
4.2 Waivers.
All waivers contained herein are hereby granted to the extent and only to the
extent specifically stated herein and for no other purpose or period and shall
not be deemed to (A) be a consent or agreement to, or waiver or modification
of,
any other term or condition of the Credit Agreement, any other Loan Document
or
any of the documents referred to therein, or (B) except as expressly set forth
herein, prejudice any right or rights which the Administrative Agent, the
Issuing Banks or the Lenders may now have or may have in the future under or
in
connection with the Credit Agreement, any other Loan Document or any of the
documents referred to therein. Granting the waivers and consent set forth herein
does not and should not be construed to be an assurance or promise that waivers
or consents will be granted in the future, whether for the matters herein stated
or on other unrelated matters.
4.3 Confirmation.
The provisions of the Credit Agreement, as amended by this Third Amendment,
shall remain in full force and effect following the effectiveness of this Third
Amendment.
4.4 Ratification
and Affirmation; Representations and Warranties. The Borrower hereby (a)
ratifies and affirms its obligations under, and acknowledges, renews and extends
its continued liability under, each Loan Document to which it is a party and
agrees that each Loan Document to which it is a party remains in full force
and
effect, except as expressly amended hereby, notwithstanding the amendments
contained herein and (b) represents and warrants to the Lenders that as of
the
date hereof, after giving effect to the terms of this Third Amendment: (i)
all
of the representations and warranties contained in each Loan Document to which
it is a party are true and correct, except to the extent any such
representations and warranties are expressly limited to an earlier date, in
which case, such representations and warranties shall continue to be true and
correct as of such specified earlier date, (ii) no Default has occurred and
is
continuing and (iii) since December 31, 2004, there has been no event,
development or circumstance that has had or could reasonably be expected to
have
a Material Adverse Effect.
4.5 Loan
Document. This Third Amendment is a “Loan Document” as defined and described in
the Credit Agreement and all of the terms and provisions of the Credit Agreement
relating to Loan Documents shall apply hereto.
4.6 Counterparts.
This Third Amendment may be executed by one or more of the parties hereto in
any
number of separate counterparts, and all of such counterparts taken together
shall be deemed to constitute one and the same instrument. Delivery of this
Third Amendment by facsimile transmission shall be effective as delivery of
a
manually executed counterpart hereof.
4.7 NO
ORAL
AGREEMENT. THIS THIRD AMENDMENT, THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND THEREWITH REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR UNWRITTEN ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.
6
4.8 GOVERNING
LAW. THIS THIRD AMENDMENT (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY AND
ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF TEXAS.
[SIGNATURES
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7
IN
WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be
duly
executed as of the date first written above.
By: /s/
Xxxxx
X. Xxxx
Xxxxx
X.
Xxxx
Senior
Vice President & Treasurer
S-1
Administrative
Agent, Issuing
Bank
& Lender: JPMORGAN
CHASE BANK, N.A.
By:
/s/
Xxxxxx X. Xxxxxxx
Xxxxxx
X.
Xxxxxxx
Executive
Director
S-2
Issuing
Bank & Lender: BANK
OF
AMERICA, N.A.
By:
/s/
Xxxxxx X. XxXxxx
Xxxxxx
X.
XxXxxx
Senior
Vice President
S-3
Lender: BNP
PARIBAS
By: /s/
Xxxxx
Xxxxxx
Xxxxx
Xxxxxx
Director
By: /s/
Xxxx
Xxxxxxxx
Xxxx
Xxxxxxxx
Vice
President
S-4
Lender: WACHOVIA
BANK, NATIONAL ASSOCIATION
By: /s/
Xxxx
Xxxxxxxxx
Xxxx
Xxxxxxxxx
Vice
President
S-5
Lender: CITIBANK,
N.A.
By: /s/
XXXXXX XXXXX
XXXXXX
XXXXX
Attorney
in Fact
S-6
Lender: BMO
CAPITAL MARKETS FINANCING, INC.
(f/k/a
XXXXXX XXXXXXX FINANCING, INC.)
By: /s/
Xxxxx
X. Xxxxxx
Xxxxx
X.
Xxxxxx
Director
S-7
Lender: SUNTRUST
BANK
By: /s/
Xxxxx
X. Xxxxxx
Xxxxx
X.
Xxxxxx
Managing
Director
S-8
Lender: BARCLAYS
BANK PLC
By: /s/
Xxxxxxxx Xxxx
Xxxxxxxx
Xxxx
Director
S-9
Lender: DEUTSCHE
BANK AG NEW YORK BRANCH
By: /s/
Xxxxxx Xxxxxxxxxx
Xxxxxx
Xxxxxxxxxx
Director
By: /s/
Xxxxxx Xxxxx
Xxxxxx
Xxxxx
Vice
President
S-10
Lender: FORTIS
CAPITAL CORP.
By:
/s/
Xxxxx
Xxxxxxxxxx
Xxxxx
Xxxxxxxxxx
Senior
Vice President
By:
/s/
Xxxxxxx Xxxxxx
Xxxxxxx
Xxxxxx
Managing
Director
S-11
Lender: THE
ROYAL
BANK OF SCOTLAND plc
By:
/s/
Xxxxx
Xxxx
Xxxxx
Xxxx
Vice
President
S-12
Lender: XXXXX
FARGO BANK, N.A.
By:
/s/
Xxxxx
X. XxXxxxx
Xxxxx
X.
XxXxxxx
Assistant
Vice President
S-13
Lender: THE
BANK
OF TOKYO-MITSUBISHI UFJ, LTD. HOUSTON AGENCY
By:
/s/
Xxxxxx Xxxxxxxxx
Xxxxxx
Xxxxxxxxx
Vice
President and Manager
By:
/s/
Xxx
Fort
Xxx
Fort
Vice
President
S-14
Issuing
Bank & Lender: U.S.
BANK
NATIONAL ASSOCIATION
By:
/s/
Xxxxx
Xxxxxxx
Xxxxx
Xxxxxxx
Vice
President
S-15
Lender: COMERICA
BANK
By:
/s/
Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx
Corporate
Banking Officer
S-16
Lender: UBS
LOAN
FINANCE LLC
By:
/s/
Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx
Director
By:
/s/
Xxxx
X. Xxxx
Xxxx
X.
Xxxx
Associate
Director
S-17
Lender: NATIXIS
By:
/s/
Xxxxxx x’Xxxxxx
Xxxxxx
x’Xxxxxx
Senior
Managing Director
By: /s/
Xxxxxx Xxxxx
Xxxxxx
Xxxxx
Director
S-18
Lender: XXXXXXX
STREET COMMITMENT
CORPORATION
(Recourse only to assets of Xxxxxxx Street Commitment Corporation)
By:
/s/
Xxxx
Xxxxxx
Xxxx
Xxxxxx
Assistant
Vice President
S-22
SCHEDULE
2.01
COMMITMENTS
|
Lender
|
Amount
of
Commitment
|
Applicable
Percentage
|
||
|
JPMorgan
Chase Bank, N.A.
|
$169,750,000
|
8.4875%
|
||
|
Bank
of America, N.A.
|
$152,250,000
|
7.6125%
|
||
|
BNP
Paribas
|
$123,000,000
|
6.1500%
|
||
|
BMO
Capital Markets Financing, Inc. (f/k/a Xxxxxx Xxxxxxx Financing,
Inc.)
|
$123,000,000
|
6.1500%
|
||
|
The
Bank of Tokyo-Mitsubishi UFJ, Ltd. Houston Agency (merged with UFJ
Bank
Limited)
|
$123,000,000
|
6.1500%
|
||
|
Citibank,
N.A.
|
$123,000,000
|
6.1500%
|
||
|
SunTrust
Bank
|
$123,000,000
|
6.1500%
|
||
|
Wachovia
Bank, National Association
|
$123,000,000
|
6.1500%
|
||
|
Calyon
New York Branch
|
$90,000,000
|
4.5000%
|
||
|
Barclays
Bank PLC
|
$87,500,000
|
4.3750%
|
||
|
Deutsche
Bank AG New York Branch
|
$87,500,000
|
4.3750%
|
||
|
Fortis
Capital Corp.
|
$87,500,000
|
4.3750%
|
||
|
The
Royal Bank of Scotland plc
|
$87,500,000
|
4.3750%
|
||
|
Xxxxx
Fargo Bank, N.A.
|
$87,500,000
|
4.3750%
|
||
|
Xxxxxxx
Street Commitment Corporation
|
$87,500,000
|
4.3750%
|
||
|
ABN
Amro Bank N.V.
|
$70,000,000
|
3.5000%
|
Schedule
2.01-1
|
UBS
Loan Finance LLC
|
$70,000,000
|
3.5000%
|
||
|
The
Bank of New York
|
$50,000,000
|
2.5000%
|
||
|
U.S.
Bank National Association
|
$50,000,000
|
2.5000%
|
||
|
Comerica
Bank
|
$35,000,000
|
1.7500%
|
||
|
KBC
Bank, N.V.
|
$25,000,000
|
1.2500%
|
||
|
Natixis
|
$25,000,000
|
1.2500%
|
||
|
Total:
|
$2,000,000,000
|
100.00%
|
Schedule
2.01-2
