EXHIBIT 10.4
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
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THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is made and entered
into as of the 16th day of November, 1998, by and among CROSS TIMBERS OIL
COMPANY, a Delaware corporation ("Company"), the Banks that are signatories
hereto (collectively, the "Banks"), XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent for Banks, NATIONSBANK, N.A., as Syndication Agent for
Banks and CHASE BANK OF TEXAS, N.A., as Documentation Agent for Banks.
W I T N E S S E T H:
WHEREAS, Company, Xxxxxx Guaranty Trust Company of New York, as
Administrative Agent for Banks, NationsBank, N.A., as Syndication Agent for
Banks, Chase Bank of Texas, N.A., as Documentation Agent for Banks, and Banks
have entered into that certain Amended and Restated Revolving Credit Agreement
dated as of August 28, 1998, which amends and restates in its entirety that
certain Revolving Credit Agreement dated as of April 17, 1998, as amended (as
amended and as in effect as of the Closing Date (as defined below), as amended
and restated hereby and as amended from time to time hereafter, the "Loan
Agreement").
WHEREAS, the parties hereto desire to amend the Loan Agreement as set forth
herein and to restate the Loan Agreement in its entirety to read as set forth in
the Loan Agreement with the amendments specified below.
NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, agree as follows:
ARTICLE I
Definitions and References
1.01 Unless otherwise specifically defined herein, each term used herein
which is defined in the Loan Agreement as in effect immediately prior to the
Closing Date shall have the meaning assigned to such term in the Loan Agreement
as so in effect. Each reference to "hereof," "hereunder," "herein" and "hereby"
and each other similar reference and each reference to "this Loan Agreement" and
each other similar reference contained in the Loan Agreement shall from and
after the Closing Date refer to the Loan Agreement as amended and restated
hereby.
ARTICLE II
Amendments
2.01. Amendments to Article I. Effective as of the Closing Date, Article
I of the Loan Agreement is amended as follows:
(A) Amendments to Certain Definitions. The definitions of Closing Date,
Commitment, Proposed Royalty Trust and Threshold Amount are amended in their
entirety and the following are substituted therefor:
(i) "Closing Date" shall mean November 16, 1998.
(ii) "Commitment" shall mean at any time Banks' commitment to make the
Loan and any Borrowing thereunder available to Company in an
aggregate amount at any time not to exceed the lesser of (i) the
Borrowing Base then in effect or (ii) the Facility Amount. With
respect to each Bank, its Commitment shall never exceed its
Percentage of the lesser of (i) the Borrowing Base then in effect or
(ii) the Facility Amount. The amount of each Bank's Commitment may
be terminated or reduced from time to time in accordance with the
provisions hereof. The Commitment as of the Closing Date is
$600,000,000, and upon closing of the San Xxxx Basin Acquisition the
Commitment shall be increased to $615,000,000, but subject to
further adjustment as provided in Section 5.05(a).
(iii) "Proposed Royalty Trust" shall mean the royalty trust to be formed
by Company, pursuant to which Company shall assign and convey to
such royalty trust an 80% net profits interest in primarily
leasehold Mineral Properties owned by Company in the Hugoton Field
in Kansas and Oklahoma, in the Green River Basin in Wyoming, in the
Elk City area in Oklahoma and in such other Mineral Properties
located in Oklahoma and Kansas as may be selected by Company.
Initially, all beneficial units representing ownership of the
Proposed Royalty Trust will be owned and held by Company. The
Proposed Royalty Trust is further described in Section 5.05(b).
(iv) "Threshold Amount" shall mean, at any time during the period between
the Closing Date to April 15, 1999, the lesser of (A) the amount
determined under the PV Borrowing Base Test or (B) the amount equal
to the remainder of (i) the quotient of (a) the Present Value of
Borrowing Base Reserves that are attributable to the Proved Reserves
allocable to the Borrowing Base Assets (provided that at least
eighty-five percent (85%) of such Proved Reserves shall consist of
Proved Developed Producing Reserves) plus the Gas Subsidiaries' Loan
Value divided by (b) 1.35, less (ii) the unpaid principal balance of
the Subordinated Indebtedness then outstanding. At the Closing Date,
the Threshold Amount is $565,000,000. Upon closing of the San Xxxx
Basin Acquisition, the Threshold Amount shall be increased to
$590,000,000. During the period between the Closing Date to April
15, 1999, the Threshold Amount shall be determined (and approved by
Majority Banks) as provided in Section 2.03(d) hereof and upon each
redetermination of the Borrowing Base.
(B) Additional Definitions. The following definitions are hereby
included in Article I of the Loan Agreement:
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(i) "San Xxxx Basin Acquisition" shall mean the acquisition
transactions to be consummated pursuant to which Company, as buyer,
shall acquire the San Xxxx Basin Properties.
(ii) "San Xxxx Properties" shall mean the oil and gas properties
and tax credit partnerships to be acquired by Company upon closing
of the San Xxxx Basin Acquisition. The San Xxxx Basin Properties
consist of undivided interests in certain oil and gas properties
located in Rio Arriba and San Xxxx Counties, New Mexico and in Major
and Xxxxxxxx Counties, Oklahoma and interests in two coal seam tax
credit partnerships.
(C) Amendment to the Definition of Permitted Margin Debt. The definition
of Permitted Margin Debt is hereby amended by deleting the reference to
"subclause (xi) of Section 9.01" as set forth in such definition and
substituting therefor the reference to "subclause (xii) of Section 9.01."
2.02. Amendment to Section 5.02. Effective as of the Closing Date,
Section 5.02 of the Loan Agreement is amended in its entirety and the following
is substituted therefor:
"5.02. Initial Borrowing Base. During the period from the Closing
Date to the closing of the San Xxxx Basin Acquisition, the Borrowing Base
shall be $600,000,000. Upon consummation of the San Xxxx Basin
Acquisition, the Borrowing Base shall be increased to $615,000,000, but
subject to further adjustment as provided in Section 5.05(a). The
Borrowing Base in effect from time to time is subject to adjustment as
provided in Sections 5.03, 5.04 and 5.05."
2.03. Amendment to Section 5.05(a). Effective as of the Closing Date,
Section 5.05(a) of the Loan Agreement is amended by including the following
sentences at the conclusion of such section:
"Pursuant to the terms of the purchase and sale agreements
evidencing the San Xxxx Basin Acquisition, at closing of the San
Xxxx Basin Acquisition, certain of the San Xxxx Basin Properties may
be excluded from such acquisitions and the purchase price for the
San Xxxx Basin Properties may be reduced by the value allocated to
such excluded properties, on account of title defects and/or adverse
environmental conditions. After the purchase price for the San Xxxx
Basin Properties has been reduced by an aggregate amount of
$5,000,000 on account of such title defects and/or environmental
conditions, the Borrowing Base shall thereafter be reduced by the
loan value assigned to any additional properties that are affected
by such title defects and/or environmental conditions according to
the reserve report covering the San Xxxx Basin Properties that was
delivered by Company to Agents or, if available, the most recent
Reserve Report delivered to Banks."
2.04. Amendment to Section 5.05(b). Effective as of the Closing Date,
Section 5.05(b) of the Loan Agreement is amended by deleting the phrase "Company
may (but has no present
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plans to) make a public offering of some or all of the units in the Proposed
Royalty Trust" as set forth in such Section and substituting therefor the phrase
"Company plans to make a public offering of some or all of the units in the
Proposed Royalty Trust."
2.05. Amendment to Article 7. Effective as of the Closing Date, Article 7
of the Loan Agreement is amended by including the following Section 7.06:
"7.06. San Xxxx Basin Acquisition. In addition to the conditions
precedent set forth in Section 7.02, the obligation of Banks to increase
the Borrowing Base and the Commitment by the amounts set forth herein shall
be subject to the following additional conditions precedent:
(a) Environmental Certificate. A certificate signed by a
duly authorized officer of Company, stating that Company has
reviewed the effect of Environmental Laws on the San Xxxx Basin
Properties, and associated liabilities and costs, and on the basis
of such review, neither Company nor its predecessor in title to the
San Xxxx Basin Properties is, in any material respect, in violation
of any Environmental Laws applicable to the San Xxxx Basin
Properties, and the Company reasonably believes that Environmental
Laws then in effect that are applicable to the San Xxxx Basin
Properties are unlikely to have a Material Adverse Effect on Company
or its Subsidiaries considered as a whole.
(b) Title Information. Supplemental title opinions, updated
title reports, existing title opinions, assignments, division
orders, and/or other evidence of title requested by Agents, covering
the properties to be acquired by Company pursuant to the San Xxxx
Basin Acquisition evidencing that (subject to Permitted Liens)
Company shall have good and marketable title to such properties that
constitute not less than 60% of the value of all of the San Xxxx
Basin Properties to be acquired pursuant to the San Xxxx Basin
Acquisition, and assignments and other instruments of conveyance to
Company that vest title to the San Xxxx Basin Properties to be
acquired pursuant to the San Xxxx Basin Acquisition in Company."
(c) Prior Notice. On the closing date of the San Xxxx Basin
Acquisition, Company shall provide Agents (with copy to
Administrative Agent's office at Xxxxxx Xxxxxxxxxx Center, 000
Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000, Attention: Xx.
Xxxxxx Xxxxxxx) with written notice of the closing of the San Xxxx
Basin Acquisition and the Commitment and Borrowing Base to be in
effect after consummation of the San Xxxx Basin Acquisition."
2.06. Amendment to Section 9.01. Effective as of the Closing Date, the
following subclause (xiv) is included in Section 9.01 of the Loan Agreement:
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"(xiv) the obligation of Company to make up to $6,000,000 in deferred
payments to the sellers of the Shell Properties pursuant to the terms of the
purchase and sale agreement for the Shell Acquisition."
2.07. Amendment to Section 9.21. Effective as of the Closing Date,
subclause (iii) of Section 9.21 of the Loan Agreement is amended in its entirety
to read as follows:
"(iii) Company shall not form the Proposed Royalty Trust after December 31,
1999,"
2.08. Amendment to Schedule I. Effective as of the Closing Date, Schedule
I of the Loan Agreement amended in its entirety and the Schedule I attached
hereto shall be substituted therefor.
ARTICLE III
Condition Precedent
3.01 Counterparts; Conditions to Effectiveness.
(a) Majority Banks. As to Sections 2.01(A)(i) and (iii), Sections
2.01(C), Section 2.04, Section 2.06 and Section 2.07 hereof, this instrument
shall become effective as to such Sections (and the Loan Agreement shall be
amended and restated in the form of the Loan Agreement immediately before giving
effect hereto and with the amendments referred to in such Sections) as of the
Closing Date when Administrative Agent shall have received a duly executed
counterpart hereof signed by the Company and Majority Banks (or, in the case of
any Bank included within Majority Banks as to which an executed counterpart
shall not have been received, Administrative Agent shall have received
telegraphic, telex or other written confirmation from such party of execution of
a counterpart hereof by such Bank).
(b) All Banks. As to Sections 2.01(A)(ii) and (iv), Section 2.01(B),
Section 2.02, Section 2.03, Section 2.05, and Section 2.08 hereof, this
instrument shall become effective as to such Sections (and the Loan Agreement
shall be amended and restated in the form of the Loan Agreement immediately
before giving effect hereto and with the amendments referred to in such
Sections) as of the Closing Date when Administrative Agent shall have received a
duly executed counterpart hereof signed by the Company and all of the Banks (or,
in the case of any Bank as to which an executed counterpart shall not have been
received, Administrative Agent shall have received telegraphic, telex or other
written confirmation from such party of execution of a counterpart hereof by
such Bank).
3.02. Corporate General Certificate. The obligation of each Bank hereunder
is subject to the condition precedent that, on the Closing Date, Administrative
Agent shall have received a Corporate General Certificate for Company in the
form attached hereto as Exhibit "A".
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ARTICLE IV
Ratifications, Representations and Warranties
4.01. Ratifications. The terms and provisions set forth herein shall
modify and supersede all inconsistent terms and provisions set forth in the Loan
Agreement immediately before giving effect hereto and the other Loan Papers,
and, except as expressly modified, amended, and superseded herein, the terms and
provisions of the Loan Agreement and the other Loan Papers are ratified and
confirmed and shall continue in full force and effect. Company and Banks agree
that the Loan Agreement, as amended and restated in its entirety hereby, and the
other Loan Papers shall continue to be legal, valid, binding and enforceable in
accordance with their respective terms.
4.02. Representations, Warranties and Agreements. Company hereby
represents and warrants to Banks that (a) the execution, delivery and
performance of the Loan Agreement as amended and restated in its entirety hereby
has been authorized by all requisite corporate action on the part of Company and
will not violate the Articles/Certificate of Incorporation or Bylaws of Company;
(b) the representations and warranties contained in the Loan Agreement, as
amended and restated in its entirety hereby, and any other Loan Papers are true
and correct on and as of the date hereof and on and as of the date of execution
hereof as though made on and as of each such date; (c) no Default or Event of
Default under the Loan Agreement, as amended and restated in its entirety
hereby, has occurred and is continuing; and (d) Company is in full compliance
with all covenants and agreements contained in the Loan Agreement and the other
Loan Papers, as amended and restated in its entirety hereby.
ARTICLE V
Miscellaneous Provisions
5.01. Reference to Loan Agreement. The other Loan Papers, and any and all
other agreements, documents or instruments now or hereafter executed and
delivered pursuant to the terms hereof or pursuant to the terms of the Loan
Agreement, as amended and restated in its entirety hereby, are hereby amended so
that any reference in the Loan Agreement and such other Loan Papers to the Loan
Agreement shall mean a reference to the Loan Agreement as amended and restated
in its entirety hereby.
5.02. Expenses of Agents. As provided in the Loan Agreement, Company
agrees to pay on demand all reasonable costs and expenses incurred by Agents in
connection with the preparation, negotiation and execution of this Amended and
Restated Revolving Credit Agreement, including, without limitation, the costs
and fees of Agent's legal counsel, and all reasonable costs and expenses
incurred by Banks in connection with the enforcement or preservation of any
rights under the Loan Agreement, as amended and restated in its entirety hereby,
or any other Loan Papers, including, without, limitation, the reasonable costs
and fees of Agents' legal counsel. Company shall not be responsible for the cost
or expense of legal counsel of any other Bank in connection with the
preparation, execution and delivery of this Amendment.
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5.03. Counterparts. This instrument may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
5.04. Headings. The headings, captions, and arrangements used herein are
for convenience only and shall not affect the interpretation of this instrument.
5.05. Applicable Law. THE LOAN AGREEMENT AS AMENDED AND RESTATED IN ITS
ENTIRETY HEREBY AND ALL OTHER LOAN PAPERS EXECUTED PURSUANT HERETO SHALL BE
DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN AND SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS UNLESS THE LAWS
GOVERNING NATIONAL BANKS SHALL HAVE APPLICATION.
5.06. Final Agreement. THE LOAN AGREEMENT AS AMENDED AND RESTATED IN ITS
ENTIRETY HEREBY AND THE OTHER LOAN PAPERS, EACH AS AMENDED HEREBY, REPRESENT THE
ENTIRE EXPRESSION OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF ON
THE CLOSING DATE THIS AMENDMENT IS EXECUTED. THE LOAN AGREEMENT AS AMENDED AND
RESTATED IN ITS ENTIRETY HEREBY AND THE OTHER LOAN PAPERS, AS AMENDED HEREBY,
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES. NO MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY
PROVISION OF THE LOAN AGREEMENT OR THE OTHER LOANS PAPERS SHALL BE MADE, EXCEPT
BY A WRITTEN AGREEMENT SIGNED BY COMPANY AND EITHER BANKS OR MAJORITY BANKS, AS
PROVIDED IN THE LOAN AGREEMENT.
IN WITNESS WHEREOF, this Amendment has been executed in multiple originals
and is effective as of the date first above-written.
[SIGNATURE PAGES TO FOLLOW]
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COMPANY:
CROSS TIMBERS OIL COMPANY,
a Delaware corporation
By: XXXX O'REAR
---------------------------------------------
BANKS:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: XXXX XXXXXXXXX
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NATIONSBANK, N.A.
By: J. XXXXX XXXXXX
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CHASE BANK OF TEXAS, N.A.
By: XXX X. XXXXXXXXX
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BANKBOSTON, N.A.
By: XXXXXX X. XXXXXXX
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XXXXX FARGO BANK (TEXAS), N.A.
By: XXXXXXX X. XXXXXXX
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FROST NATIONAL BANK, as the surviving
bank by merger of Xxxxxxx Bank and Trust, N.A.,
effective May 29, 1998
By: W.H. (XXXX) XXXXX, III
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ABN-AMRO BANK N.V.
By: XXXXX X. XXXX
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By: XXXXXX XXXXXXX
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BANK OF MONTREAL
By: XXXXXXX XXXXXX
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THE BANK OF NEW YORK
By: XXXXXXX X. XXXXXX
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BANQUE PARIBAS
By: XXXX XXXXXX
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By: XXXXXX XXXXXXXXXX
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CREDIT LYONNAIS NEW YORK BRANCH
By: PHILIPPE SOUSTRA
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BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By: J. XXXXX XXXXXX
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FIRST UNION NATIONAL BANK
By: XXXXXX X. XXXXXXXXX
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BANK ONE, TEXAS, N.A.
By: XXXX X. XXXXXX
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NATEXIS Banque
By: XXXXXXX X. XXXXXXX
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By: XXXX XXXXXX
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THE BANK OF NOVA SCOTIA
By: F.C.H. XXXXX
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COMERICA BANK-TEXAS
By: XXXXX X. XXXXXXXXXX
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