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 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 J.P. MORGAN SECURITIES INC. and BANC OF AMERICA SECURITIES LLC, as Co-Arrangers and Joint Bookrunners THIRD AMENDMENT TO 5-YEAR REVOLVING CREDIT AGREEMENT

 

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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.

 

 

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

 

 

“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 Moody’s based on the classifications for such Hybrid Equity Securities issued by S&P and Moody’s; provided that if the classifications for such Hybrid Equity Securities issued by S&P and Moody’s 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 Moody’s (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 Moody’s (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”.

 

 

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.

 

 

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. William 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)).

 

 

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.

 

 

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 BEGIN NEXT PAGE]

IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be duly executed as of the date first written above.

XTO ENERGY INC.

By:           /s/ Brent W. Clum  

Brent W. Clum

Senior Vice President & Treasurer

Administrative Agent, Issuing

Bank & Lender:    JPMORGAN CHASE BANK, N.A.

 

By:     /s/ Robert W. Traband  

Robert W. Traband

Executive Director

 

Issuing Bank & Lender: BANK OF AMERICA, N.A.

 

By:     /s/ Ronald E. McKaig  

Ronald E. McKaig

Senior Vice President

 

Lender: BNP PARIBAS

 

 

By:           /s/ Betsy Jocher  

Betsy Jocher

Director

 

 

By:          /s/ Greg Smothers  

Greg Smothers

Vice President

 

 

 

 

Lender: WACHOVIA BANK, NATIONAL ASSOCIATION

 

By:        /s/ Paul Pritchett  

Paul Pritchett

Vice President

 

Lender:     CITIBANK, N.A.

 

 

By:    /s/ ASHISH SETHI  

ASHISH SETHI

Attorney in Fact

Lender:     BMO CAPITAL MARKETS FINANCING, INC.

(f/k/a HARRIS NESBITT FINANCING, INC.)

 

By:     /s/ James V. Ducote  

James V. Ducote

Director

 

Lender:     SUNTRUST BANK

 

 

By:        /s/ James M. Warren  

James M. Warren

Managing Director

 

Lender:     BARCLAYS BANK PLC

 

 

By:        /s/ Nicholas Bell  

Nicholas Bell

Director

 

Lender:     DEUTSCHE BANK AG NEW YORK BRANCH

 

 

By:      /s/ Marcus Tarkington  

Marcus Tarkington

Director

 

By:        /s/ Rainer Meier      

Rainer Meier

Vice President

 

Lender:     FORTIS CAPITAL CORP.

 

 

By:      /s/ David Montgomery     

David Montgomery

Senior Vice President

 

 

By:      /s/ Darrell Holley      

Darrell Holley

Managing Director

 

Lender:     THE ROYAL BANK OF SCOTLAND plc

 

 

By:     /s/ David Slye     

David Slye

Vice President

Lender:     WELLS FARGO BANK, N.A.

 

By:      /s/ Bryan M. McDavid         

Bryan M. McDavid

Assistant Vice President

 

 

Lender: THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. HOUSTON AGENCY

 

By:     /s/ Kelton Glasscock      

Kelton Glasscock

Vice President and Manager

 

By:      /s/ Jay Fort          

Jay Fort

Vice President

 

Issuing Bank & Lender:   U.S. BANK NATIONAL ASSOCIATION

 

 

By:     /s/ Daria Mahoney    

Daria Mahoney

Vice President

Lender:     COMERICA BANK

 

By:     /s/ Rebecca L. Wilson  

Rebecca L. Wilson

Corporate Banking Officer

 

 

Lender:     UBS LOAN FINANCE LLC

 

 

By:      /s/ Richard L. Tavrow  

Richard L. Tavrow

Director

 

By:     /s/ Irja R. Otsa      

Irja R. Otsa

Associate Director

 

Lender:     NATIXIS

 

 

By:      /s/ Renaud d’Herbes     

 

Renaud d’Herbes

Senior Managing Director

 

By:         /s/ Daniel Payer          

Daniel Payer

Director

 

Lender: WILLIAM STREET COMMITMENT

 

 

CORPORATION (Recourse only to assets of William Street Commitment Corporation)

 

 

By:      /s/ Mark Walton  

Mark Walton

Assistant Vice President

 

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 Harris Nesbitt 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%
Wells Fargo Bank, N.A.		$87,500,000		4.3750%
William Street Commitment Corporation		$87,500,000		4.3750%
ABN Amro Bank N.V.		$70,000,000		3.5000%

 

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