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EXHIBIT 10.5
SECOND AMENDMENT
TO
5-YEAR REVOLVING CREDIT AGREEMENT
dated as of
October 25, 2006
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,
CALYON NEW YORK BRANCH,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Co-Syndication Agents
and
CITIBANK, N.A.,
HARRIS NESBITT 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
SECOND AMENDMENT TO 5-YEAR
REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT TO 5-YEAR REVOLVING CREDIT AGREEMENT (this
" Second Amendment ") dated as of October 25, 2006, is among
XTO ENERGY INC., a Delaware corporation, as the Borrower;
JPM ORGAN C
HASE B ANK , N.A., as Administrative
Agent, JPM ORGAN C HASE B
ANK , N.A., B
ANK OF A MERICA ,
N.A., and U.S. B ANK
N ATIONAL A SSOCIATION , as Issuing Banks, and the Lenders party hereto.
RECITALS
A. The Borrower, the Administrative Agent and the Lenders are
parties to that certain 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, 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 Second Amendment refer to
articles and sections of the Credit Agreement.
Section 2. Amendments to Credit Agreement .
2.1 Amendments to Section 1.01 .
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(a) 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 and the Second
Amendment, as the same may from time to time be amended, modified,
restated, or replaced from time to time.
(b) The following definition is hereby added where
alphabetically appropriate to read as follows:
" Second Amendment " means the Second Amendment to 5-Year
Revolving Credit Agreement dated as of October 25, 2006 among
the Borrower and the Lenders party thereto.
2.2 Amendment to Section 4.02. Section 4.02 is
hereby amended in its entirety to read as follows:
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"Section 4.02 Each Credit Event . The
obligation of each Lender to make a Loan on the occasion of any
Borrowing, and of the Issuing Banks to issue, amend, renew or
extend any Letter of Credit, is subject to the satisfaction of the
following conditions:
(a) The representations and warranties of the Borrower set forth
in this Agreement and of the Subsidiary Guarantors set forth in the
Subsidiary Guaranties shall be true and correct on and as of the
date of such Borrowing or the date of the issuance, amendment,
renewal or extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default shall have occurred and
be continuing.
Each Borrowing and each issuance, amendment, renewal or
extension of a Letter of Credit shall be deemed to constitute a
representation and warranty by the Borrower on the date thereof as
to the matters specified in paragraphs (a) and (b) of
this Section."
Section 3. Conditions Precedent . This Second 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 shall have received from the
Required Lenders and the Borrower, counterparts (in such number as
may be requested by the Administrative Agent) of this Second
Amendment signed on behalf of such Persons.
3.2 The Administrative Agent shall have received such other
documents as the Administrative Agent or special counsel to the
Administrative Agent may reasonably request.
3.3 No Default shall have occurred and be continuing, after
giving effect to the terms of this Second Amendment.
Section 4. Miscellaneous .
4.1 Confirmation . The provisions of the Credit
Agreement, as amended by this Second Amendment, shall remain in
full force and effect following the effectiveness of this Second
Amendment.
4.2 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 Second 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
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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,
2005, there has been no event, development or circumstance that has
had or could reasonably be expected to have a Material Adverse
Effect.
4.3 Loan Document . This Second 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.
4.4 Counterparts . This Second 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
Second Amendment by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof.
4.5 NO ORAL AGREEMENT . THIS SECOND 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.
4.6 GOVERNING LAW . THIS SECOND 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.
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IN WITNESS WHEREOF, the parties hereto have
caused this Second Amendment to be duly executed as of the date
first written above.
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