EXHIBIT 10.3
THIRD AMENDMENT TO
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
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THIS THIRD AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
(the "Amendment") is made and entered into as of the 17th day of June, 1999 (the
"Effective Date"), 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. D/B/A BANK OF AMERICA, 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:
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WHEREAS, Company, Xxxxxx Guaranty Trust Company of New York, as
Administrative Agent for Banks, NationsBank, N.A. d/b/a Bank of America 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 November 16, 1998, which amends and
restates in its entirety that certain Revolving Credit Agreement dated 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 by the
foregoing, as amended by that certain First Amendment to Amended and Restated
Revolving Credit Agreement dated as of May 17, 1999 among Company and Banks, as
amended by that certain Second Amendment to Amended and Restated Revolving
Credit Agreement dated as of June 7, 1999 among Company and Banks and as in
effect as of the Effective Date, as amended 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.
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
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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 Effective 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 Effective Date refer to the Loan Agreement as amended
hereby.
ARTICLE II
Amendments
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2.01. Amendment to Article I.
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A. Effective as of the Effective Date, the last sentence of the
definition of "Compressor Lease Agreements" is amended in its entirety and the
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following is substituted therefor:
"As used herein and in sub-clause (xiii) of the definition of Permitted
Liens, the term "funding amount" shall mean the lessor's cost of the
compressors and other equipment as set forth in such lease agreement."
B. Effective as of the Effective Date, sub-clause (xiii) of the
definition of "Permitted Liens" is amended in its entirety and the following is
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substituted therefor:
"(xiii) (a) Liens granted under the Compressor Lease Agreements, under
which (i) the total funding amount under the wellhead compressor lease
agreements for Mineral Properties in the San Xxxx Basin area is
$4,600,000, (ii) the total funding amount under the compressor lease
agreements for Mineral Properties in the East Texas area is $5,000,000,
and (iii) the total funding amount under the compressor lease agreements
for Mineral Properties in the Ozona Texas area is $3,500,000, (b) Liens
granted under aircraft lease agreements and other equipment lease
agreements in which Company or a Subsidiary is the lessee in which the
total funding amount thereunder shall not exceed $6,200,000, and (c)
Liens granted under such other and additional compressor leases in which
Company or a Subsidiary is the lessee in which the total funding amount
thereunder shall not exceed $10,000,000 per calendar year, provided,
however, that all lease and rental payments respecting the leases
permitted under this sub-clause (xiii) shall be included as operating
expenses in the determination of Cash Flow, Net Revenue and, to the
extent such payments are attributable to wellhead compressor leases, the
Present Value of Borrowing Base Reserves as established by each Reserve
Report,"
2.02. Amendment to Section 9.01. Effective as of the Effective Date, sub-
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clause (xi) of Section 9.01 of the Loan Agreement is amended in its entirety and
the following is substituted therefor:
"(xi) [INTENTIONALLY OMITTED],"
ARTICLE III
Condition Precedent
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3.01. Counterparts; Conditions to Effectiveness. This instrument shall
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become effective (and the Loan Agreement shall be amended with the amendments
referred to herein) as of the Effective Date when Administrative Agent shall
have received a duly executed counterpart
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hereof signed by 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).
ARTICLE IV
Ratifications, Representations and Warranties
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4.01. Ratifications. The terms and provisions set forth herein shall
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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 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
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represents and warrants to Banks that (a) the execution, delivery and
performance of the Loan Agreement as amended 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
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 V
Miscellaneous Provisions
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5.01. Reference to Loan Agreement. The other Loan Papers, and any
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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.
5.02. Expenses of Agents. As provided in the Loan Agreement, Company
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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 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
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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
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are for convenience only and shall not affect the interpretation of this
instrument.
5.05. Applicable Law. THE LOAN AGREEMENT AS AMENDED HEREBY AND ALL
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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 HEREBY AND THE
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OTHER LOAN PAPERS, EACH AS AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF
THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF ON THE EFFECTIVE DATE THIS
AMENDMENT IS EXECUTED. THE LOAN AGREEMENT AS AMENDED 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:
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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
BANKS:
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XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: XXXX XXXXXXXXX
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Name: Xxxx Xxxxxxxxx
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Title: Vice President
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NATIONSBANK, N.A., dba Bank of America, N.A.
By: J. XXXXX XXXXXX
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J. Xxxxx Xxxxxx, Managing Director
CHASE BANK OF TEXAS, N.A.
By: XXXX XXXX
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Xxxx Xxxx, Managing Director
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BANKBOSTON, N.A.
By: XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: Managing Director
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XXXXX FARGO BANK (TEXAS), N.A.
By: XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx, Vice President
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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W.H. (Xxxx) Xxxxx, III, Senior Vice
President
ABN-AMRO BANK N.V.
By: XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
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Title Senior Vice President
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By: W. XXXXX XXXXXXX
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Name: W. Xxxxx Xxxxxxx
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Title: Group Vice President
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BANK OF MONTREAL
By: XXXXXXX XXXXXX
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Name: Xxxxxxx Xxxxxx
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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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PARIBAS
By: XXXX XXXXXX
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Xxxx Xxxxxx, Vice President
By: XXXXXX XXXXXXXXXX
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Name: Xxxxxx Xxxxxxxxxx
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Title: Vice President
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CREDIT LYONNAIS NEW YORK BRANCH
By: PHILLIPPE SOUSTRA
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Name: Phillippe Soustra
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Title: Senior Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: J. XXXXX XXXXXX
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J. Xxxxx Xxxxxx, Managing Director
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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:
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BANK ONE, TEXAS, N.A.
By: WM. XXXX XXXXXXX
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Name: Wm. Xxxx Xxxxxxx
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Title: Vice President
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NATEXIS Banque
By: XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx, Vice President
By: XXXXXX X. X'XXXXXX
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Xxxxxx X. x'Xxxxxx
Senior Vice President
and Regional Manager
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
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Loan Operations
COMERICA BANK-TEXAS
By: XXXXX X. XXXXXXXXXX
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Xxxxx X. Xxxxxxxxxx, Vice President
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