EXHIBIT 10.3
THIRD AMENDMENT TO
REVOLVING CREDIT AGREEMENT
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THIS THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Amendment") is
made and entered into as of the 18th day of June, 1998, by and among CROSS
TIMBERS OIL COMPANY, a Delaware corporation ("Company"), and the Banks that are
signatories hereto (collectively, the "Banks").
RECITALS.
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A. Company, Xxxxxx Guaranty Trust Company of New York, as Administrative
Agent for Banks, NationsBank, N.A., successor in interest by merger to
NationsBank of Texas, 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
Revolving Credit Agreement, dated as of April 17, 1998, which was amended by (i)
that certain First Amendment to Revolving Credit Agreement dated as of June 1,
1998 among Company and Banks and (ii) that certain Second Amendment to Revolving
Credit Agreement dated as of June 17, 1998 among Company and Banks (as amended,
the "Loan Agreement").
B. Company and Banks desire to amend subclause (i) of Section 9.04 of
the Loan Agreement to permit an interim increase in the Investments in Capital
Stock of publicly traded companies engaged primarily in the oil and gas industry
and Non-CT Royalty Trust Units.
C. Company and Banks desire to amend Sections 9.01 and 10.01(d) of the
Loan Agreement to clarify the existence and effect of Indebtedness of any
Subsidiary to Company and to another Subsidiary and the Indebtedness of Company
to any Subsidiary.
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
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Capitalized terms used in this Amendment are defined in the Loan Agreement,
as amended hereby, unless otherwise stated.
ARTICLE II
Amendments
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2.01. Amendment to Section 9.01. Effective as of the date hereof, Section
9.01 of the Loan Agreement is amended by including the following sub-clause
(xii) thereto:
"and (xii) Indebtedness of any Subsidiary to Company, Indebtedness of
any Subsidiary to another Subsidiary, and Indebtedness of Company to
any Subsidiary."
2.02. Amendment to Section 9.04. Effective as of the date hereof,
subclause (i) of Section 9.04 of the Loan Agreement is amended in its entirety
and the following shall be substituted therefor:
"(i) Investments in (a) Capital Stock of publicly traded companies
engaged primarily in the oil and gas industry and (b) Non-CT Royalty Trust
Units, provided that the aggregate cost of all Investments which are outstanding
pursuant to this subclause (i) at any time shall not exceed (A) $150,000,000
until January 8, 1999 and (B) $125,000,000 after January 8, 1999;"
2.03. Amendment to Section 10.01(d). Effective as of the date hereof,
Section 10.01(d) of the Loan Agreement is amended by including the following
proviso at the conclusion of such section:
"; provided, however, that this Section 10.01(d) shall not apply to
any Indebtedness of any Subsidiary to Company or to any Indebtedness
of any Subsidiary to another Subsidiary or to any Indebtedness of
Company to any Subsidiary."
ARTICLE III
Condition Precedent
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The effectiveness of this Amendment is subject to the condition precedent
that Company and Majority Banks shall have duly and validly executed and
delivered a counterpart of this Amendment to Administrative Agent.
ARTICLE IV
No Waiver
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Except as specifically provided in this Amendment, nothing contained in
this Amendment shall be construed as a waiver by Banks of any covenant or
provision of the Loan Agreement, the other Loan Papers, or of any other contract
or instrument between Company and Banks, and the failure of Banks at any time or
times hereafter to require strict performance by Borrower of any provision
thereof shall not waive, affect or diminish any right of Banks to thereafter
demand strict compliance therewith. Banks hereby reserve all rights granted
under the Loan Agreement, the other Loan Papers, this Amendment and any other
contract or instrument between Company and Banks.
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ARTICLE V
Ratifications, Representations and Warranties
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5.01. Ratifications. The terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent terms and provisions set forth in
the Loan Agreement and the other Loan Papers, and, except as expressly modified
and superseded by this Amendment, 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 and the other
Loan Papers, as amended hereby, shall continue to be legal, valid, binding and
enforceable in accordance with their respective terms.
5.02. Representations, Warranties and Agreements. Company hereby represents
and warrants to Banks that (a) the execution, delivery and performance of this
Amendment 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 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 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 hereby.
ARTICLE VI
Miscellaneous Provisions
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6.01. Survival of Representations and Warranties. All representations and
warranties made in the Loan Agreement or any other Loan Papers, including,
without limitation, any document furnished in connection with this Amendment,
shall survive the execution and delivery of this Amendment and the other Loan
Papers, and no investigation by Agents or any Bank or any closing shall affect
the representations and warranties or the right of Agents or any Bank to rely
upon them.
6.02. Reference to Loan Agreement. Each of the Loan Agreement and 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 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 hereby.
6.03. 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 Amendment,
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
hereby, or any other Loan Papers, including, without, limitation, the reasonable
costs
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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.
6.04. Severability. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
6.05. Successors and Assigns. This Amendment is binding upon and shall
inure to the benefit of Banks and Company and their respective successors and
assigns.
6.06. Counterparts. This Amendment 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.
6.07. Headings. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
6.08. Applicable Law. THIS AMENDMENT 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.
6.09. Final Agreement. THE LOAN AGREEMENT 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 DATE THIS AMENDMENT IS EXECUTED. THE LOAN
AGREEMENT 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 THIS
AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY COMPANY AND
BANKS.
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:
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CROSS TIMBERS OIL COMPANY,
a Delaware corporation
By: XXXX O'REAR
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Xxxx O'Rear, Vice President and Treasurer
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BANKS:
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XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: XXXX X. XXXXXXXXX
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Xxxx X. Xxxxxxxxx, Vice President
NATIONSBANK, N.A.
By: J. XXXXX XXXXXX
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J. Xxxxx Xxxxxx, Vice President
CHASE BANK OF TEXAS, N.A.
By: XXX X. XXXXXXXXX
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Xxx X. Xxxxxxxxx, Vice President
BANKBOSTON, N.A.
By: XXXXXX X'XXXXX
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Name: Xxxxxx X'Xxxxx
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Title: Division Executive
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XXXXX FARGO BANK (TEXAS), N.A.
By: XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx, Vice President
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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: X. X. XXXXX
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W. H. (Xxxx) Xxxxx, III, Senior Vice
President
ABN-AMRO BANK N.V.
By: W. XXXXX XXXXXXX
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Name: W. Xxxxx Xxxxxxx
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Title: Group Vice President
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By: XXXXXX XXXXXX
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Name: Xxxxxx Xxxxxx
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Title Vice President
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BANK OF MONTREAL
By: X. X. XXXXXXXX
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Name: X. X. Xxxxxxxx
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Title: Director
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THE BANK OF NEW YORK
By: XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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BANQUE PARIBAS
By: XXXX XXXXXX
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Xxxx Xxxxxx, Vice President
By: XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
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Title: Director
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CREDIT LYONNAIS NEW YORK BRANCH
By: PHILIPPE SOUSTRA
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Philippe Soustra, Senior Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By: XXXXXX X. XxXXXX
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Name: Xxxxxx X. XxXxxx
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Title: Vice President
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FIRST UNION NATIONAL BANK
By: XXXXXX X. XXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxx
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Title: Senior Vice President
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BANK ONE, TEXAS, N.A.
By: XXXX X. XXXXXX
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Xxxx X. Xxxxxx, Vice President
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NATEXIS Banque
By: XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx, Vice President
By: XXXX XXXXXX
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Xxxx Xxxxxx, Assistant Vice President
THE BANK OF NOVA SCOTIA
By: F. C. H. XXXXX
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Name: F. C. H. Xxxxx
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Title: Senior Manager, Loan Operations
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COMERICA BANK-TEXAS
By: XXXXX X. XXXXXXXXXX
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Xxxxx X. Xxxxxxxxxx, Vice President
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