EXHIBIT 4.6.1
FIRST AMENDMENT
TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(herein called the "Amendment") made as of March 8, 2002 by and among Chesapeake
Exploration Limited Partnership, an Oklahoma limited partnership ("Borrower"),
Chesapeake Energy Corporation, an Oklahoma corporation ("Company"), Bear Xxxxxxx
Corporate Lending Inc., as syndication agent ("Syndication Agent"), Union Bank
of California, N.A., as administrative agent and collateral agent
("Administrative Agent"), and the several banks and other financial institutions
or entities parties thereto ("Lenders").
WITNESSETH:
WHEREAS, Borrower, Company, Syndication Agent, Administrative Agent and
Lenders entered into that certain Second Amended and Restated Credit Agreement
dated as of June 11, 2001 (as amended, supplemented, or restated to the date
hereof, the "Original Agreement"), for the purpose and consideration therein
expressed, whereby Lenders became obligated to make loans to Borrower as therein
provided; and
WHEREAS, Borrower, Company, Syndication Agent, Administrative Agent and
Lenders desire to amend the Original Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Original Agreement, in
consideration of the loans which may hereafter be made by Lenders to Borrower,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
Definitions and References
Section 1.1. Terms Defined in the Original Agreement. Unless the
context otherwise requires or unless otherwise expressly defined herein, the
terms defined in the Original Agreement shall have the same meanings whenever
used in this Amendment.
Section 1.2. Other Defined Terms. Unless the context otherwise
requires, the following terms when used in this Amendment shall have the
meanings assigned to them in this Section 1.2.
"Amendment" means this First Amendment to Second Amended and
Restated Credit Agreement.
"Credit Agreement" means the Original Agreement as amended
hereby.
ARTICLE II.
Amendments and Waivers
Section 2.1. Defined Terms.
(a) The definition of "Senior Debt Limit Reporting Event" in Section
1.1 of the Original Agreement is hereby deleted in its entirety. The following
definitions in Section 1.1 of the Original Agreement are hereby amended in their
entirety to read as follows:
" 'Indentures': the collective reference to (i) the 7-7/8%
Note Indenture, (ii) the 8-1/2% Note Indenture, (iii) the 8-1/8% Note
Indenture and (iv) the 8-3/8% Note Indenture."
" 'Senior Debt Limit': at any time the lesser of: (a) the
maximum amount of Indebtedness that the Company and its Subsidiaries
may incur and secure pursuant to the terms of clause (i) of the
definition of "Permitted Indebtedness" and clause (ii) of the
definition of "Permitted Liens" under the 8-1/8% Note Indenture and the
8-3/8% Note Indenture, minus the amount of Indebtedness (other than
Indebtedness under this Agreement) that the Company or any of its
Subsidiaries have incurred and/or secured by Liens as of such day that
counts against the restrictions on the maximum amount of Indebtedness
referred to in such clause (i); and (b) the sum of (x) the maximum
amount of Indebtedness that the Company and its Subsidiaries may incur
and secure pursuant to the terms of clause (i) of Section 4.9 of the
8-1/2% Note Indenture and the 7-7/8% Note Indenture minus the amount of
Indebtedness (other than Indebtedness under this Agreement) that the
Company or any of its Subsidiaries have incurred and/or secured by
Liens as of such day that counts against the restrictions on the
maximum amount of Indebtedness referred to in such clause (i) plus (y)
the actual amount of Indebtedness, if any, incurred and secured by the
Borrower under this Agreement which is permitted to be so incurred and
secured under clause (b) of Section 4.9 of the 8-1/2% Note Indenture
and the 7-7/8% Note Indenture. For purposes of this definition, (a) the
amount under clause (b)(y) shall be determined by the Company pursuant
to the 8-1/2% Note Indenture and the 7-7/8% Note Indenture, unless
determined at another amount in the discretion of Administrative Agent
or Majority Lenders, and (b) the term 'Indebtedness' shall have the
meaning given in the 8-1/8% Note Indenture, the 8-3/8% Note Indenture,
the 8-1/2% Note Indenture or the 7-7/8% Note Indenture, as applicable."
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(b) Section 1.1 of the Original Agreement is hereby amended to add the
following defined terms thereto in appropriate alphabetical order to read as
follows:
" '8-3/8% Note Indenture': the Indenture, dated as of November
5, 2001, among the Company, certain subsidiary guarantors and The Bank
of New York, as Trustee, pursuant to which the 8-3/8% Notes were
issued."
" '8-3/8% Notes': the 8-3/8% senior notes of the Company due
2008."
Section 2.2. Conditions to Each Extension of Credit. Subsection (c) of
Section 5.2 of the Original Agreement is hereby amended in its entirety to read
as follows:
"(c) Senior Debt Limit. Administrative Agent shall have
received a certificate dated as of the date of any extension of credit
(the "Senior Debt Certificate") of the chief financial officer or
treasurer of the Company certifying: (a) the maximum amount of
Indebtedness that the Company and its Subsidiaries may incur and secure
pursuant to the terms of clause (i) of the definition of "Permitted
Indebtedness" and clause (ii) of the definition of "Permitted Liens"
under the 8-1/8% Note Indenture and the 8-3/8% Note Indenture, and the
amount, if any, of Indebtedness (other than Indebtedness under this
Agreement) that the Company or any of its Subsidiaries have incurred
and/or secured by Liens as of such day that counts against the
restrictions on the maximum amount of Indebtedness referred to in such
clause (i); and (b) (x) the maximum amount of Indebtedness that the
Company and its Subsidiaries may incur and secure pursuant to the terms
of clause (i) of Section 4.9 of the 8-1/2% Note Indenture and the
7-7/8% Note Indenture and the amount of Indebtedness (other than
Indebtedness under this Agreement) that the Company or any of its
Subsidiaries have incurred and/or secured by Liens as of such day that
counts against the restrictions on the maximum amount of Indebtedness
referred to in such clause (i) and (y) the actual amount of
Indebtedness, if any, incurred and secured by the Borrower under this
Agreement which is permitted to be so incurred and secured under clause
(b) of Section 4.9 of the 8-1/2% Note Indenture and the 7-7/8% Note
Indenture. Each Senior Debt Certificate shall attach documentation
demonstrating compliance with the Senior Debt Limit as may be requested
by Administrative Agent, including satisfactory reports and appraisals
supporting such calculation and copies of the reports and appraisals
prepared by independent petroleum engineers and appraisers in
connection with the determination of Adjusted Consolidated Net Tangible
Assets pursuant to the Indentures as of the last day of the most
recently ended fiscal year of the Company."
Section 2.3. Certificates; Other Information. Clause (D) of subsection
(b) of Section 6.2 of the Original Agreement is hereby deleted in its entirety.
Paragraph 6 of the Compliance Certificate is hereby deleted in its entirety.
Section 2.4. Indebtedness. Section 7.2 of the Original Agreement is
hereby amended by (a) deleting "and" at the end of subsection (j), (b)
redesignating existing subsection "(k)" as subsection "(l)", and (c) adding an
amended subsection (k) to read as follows:
"(k) Hedging Agreements entered into by the Company with the
purpose and effect of contracting for variable interest rates on a
principal amount of Indebtedness of the Company (which, for purposes of
this subsection only, shall include the liquidation
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preference on preferred stock of the Company) that is accruing interest
or dividends at a fixed rate, provided that (1) the ratio of fixed rate
Indebtedness of the Company to total Indebtedness of the Company
remains at least seventy percent (70%), and (2) each such contract is
with a counterparty or has a guarantor of the obligation of the
counterparty who (unless such counterparty is a Lender or one of its
Affiliates) is a nationally recognized well capitalized hedging
counterparty or is an investment grade industry participant; plus the
Guarantee Obligations of one or more of the Group Members of the
obligations of the Company permitted to be incurred under this Section
7.1(k)."
Section 2.5. Regarding Certain Subsidiaries. The Company and the
Borrower hereby represent and warrant to Lenders and Administrative Agent that
Xxxxxx Acquisition Corp. is no longer an Unrestricted Subsidiary under the
8-1/2% Note Indenture and agree, contemporaneously herewith, that they will, and
will cause Xxxxxx Acquisition Corp. to, comply with the provisions of Section
6.9(b) of the Credit Agreement. The Company and the Borrower hereby represent
and warrant to Lenders and Administrative Agent that Arkoma Pittsburg Holding
Corporation has been merged with and into Borrower.
ARTICLE III.
Conditions of Effectiveness
Section 3.1. Effective Date. This Amendment shall become effective as
of the date first above written when and only when:
(a) Administrative Agent shall have received all of the following, at
Administrative Agent's office, duly executed and delivered and in form and
substance satisfactory to Administrative Agent, all of the following:
(i) the Amendment;
(ii) a favorable opinion of Commercial Law Group, counsel for
the Company, Borrower and the Subsidiary Guarantors, substantially in
the form set forth in Exhibit F of the Original Agreement;
(iii) an "Omnibus Certificate" of the Secretary and of the
Chairman of the Board or President of the general partner of Borrower,
which shall contain the names and signatures of the officers of the
general partner of Borrower authorized to execute Loan Documents and
which shall certify to the truth, correctness and completeness of the
following exhibits attached thereto: (1) a copy of resolutions attached
thereto duly adopted by the Board of Directors of the general partner
of Borrower and in full force and effect at the time this Amendment is
entered into, authorizing the execution of this Amendment and the other
Loan Documents delivered or to be delivered in connection herewith and
the consummation of the transactions contemplated herein and therein,
(2) a copy of the charter documents of Borrower and of the general
partner of Borrower and all
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amendments thereto, certified by the appropriate official of the
Borrower's state and general partner's state of organization, and (3) a
copy of any bylaws of the general partner of Borrower previously
delivered to Agent and Lenders in connection with the Original
Agreement (which may, with respect to any such charter documents or
bylaws, reference documents previously delivered in connection with the
Original Agreement);
(iv) a "Compliance Certificate" of the Chairman of the Board
or President and of the chief financial officer of the Company, in
which such officers certify to the satisfaction of the conditions set
out in subsections (a), (b), and (c) of Section 5.2 of the Original
Agreement;
(v) documents similar to those specified in subsection (iii)
of this Section with respect to each Subsidiary Guarantor (which may,
with respect to charter documents or bylaws, reference documents
previously delivered in connection with the Original Agreement);
(vi) a certificate executed by the chief financial officer of
the Company of even date herewith reflecting the computation of the
then current Senior Debt Limit together with supporting information
satisfactory to Administrative Agent.
(vii) such other supporting documents as Administrative Agent
may reasonably request.
(b) Borrower shall have paid, in connection with such Loan Documents,
all recording, handling, amendment and other fees required to be paid to
Administrative Agent pursuant to any Loan Documents.
(c) Borrower shall have paid, in connection with such Loan Documents,
all other fees and reimbursements to be paid to Administrative Agent pursuant to
any Loan Documents, or otherwise due Administrative Agent and including fees and
disbursements of Administrative Agent's attorneys.
ARTICLE IV.
Representations and Warranties
Section 4.1. Representations and Warranties of Borrower. In order to
induce each Lender to enter into this Amendment, Borrower represents and
warrants to each Lender that:
(a) The representations and warranties contained in Section 4 of the
Original Agreement are true and correct at and as of the time of the
effectiveness hereof, except to the extent that the facts on which such
representations and warranties are based have been changed by the extension of
credit under the Credit Agreement.
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(b) The Company and Borrower are duly authorized to execute and deliver
this Amendment and are and will continue to be duly authorized to borrow monies
and to perform their respective obligations under the Credit Agreement. The
Company and Borrower have duly taken all corporate or partnership action
necessary to authorize the execution and delivery of this Amendment and to
authorize the performance of the obligations of the Company and Borrower
hereunder.
(c) The execution and delivery by the Company and Borrower of this
Amendment, the performance by the Company and Borrower of its obligations
hereunder and the consummation of the transactions contemplated hereby do not
and will not conflict with any provision of law, statute, rule or regulation or
of the certificate of incorporation, bylaws, or agreement of limited partnership
of the Company or Borrower (as applicable), or of any material agreement,
judgment, license, order or permit applicable to or binding upon the Company or
Borrower, or result in the creation of any lien, charge or encumbrance upon any
assets or properties of the Company or Borrower. Except for those which have
been obtained, no consent, approval, authorization or order of any court or
governmental authority or third party is required in connection with the
execution and delivery by the Company and Borrower of this Amendment or to
consummate the transactions contemplated hereby.
(d) When duly executed and delivered, each of this Amendment and the
Credit Agreement will be a legal and binding obligation of the Company and
Borrower, enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or similar laws of general application relating to the
enforcement of creditors' rights and by equitable principles of general
application.
(e) The audited annual Consolidated financial statements of the Company
dated as of December 31, 2000 and the unaudited quarterly Consolidated financial
statements of the Company dated as of September 30, 2001 fairly present the
Consolidated financial position at such dates and the Consolidated statement of
operations and the changes in Consolidated financial position for the periods
ending on such dates for the Company. Copies of such financial statements have
heretofore been delivered to each Lender. Since such dates no material adverse
change has occurred in the financial condition or businesses or in the
Consolidated financial condition or businesses of the Company.
ARTICLE V.
Miscellaneous
Section 5.1. Ratification of Agreements. The Original Agreement as
hereby amended is hereby ratified and confirmed in all respects. Any reference
to the Credit Agreement in any Loan Document shall be deemed to be a reference
to the Original Agreement as hereby amended. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of Lenders under the Credit
Agreement, the Notes, or any other Loan Document nor constitute a waiver of any
provision of the Credit Agreement, the Notes or any other Loan Document.
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Section 5.2. Survival of Agreements. All representations, warranties,
covenants and agreements of Borrower herein shall survive the execution and
delivery of this Amendment and the performance hereof, including without
limitation the making or granting of the Loans, and shall further survive until
all of the Obligations are paid in full. All statements and agreements contained
in any certificate or instrument delivered by the Company, Borrower or any
Subsidiary Guarantor hereunder or under the Credit Agreement to any Lender shall
be deemed to constitute representations and warranties by, and/or agreements and
covenants of, Borrower under this Amendment and under the Credit Agreement.
Section 5.3. Loan Documents. This Amendment is a Loan Document, and all
provisions in the Credit Agreement pertaining to Loan Documents apply hereto.
Section 5.4. Governing Law. This Amendment shall be governed by and
construed in accordance the laws of the State of New York and any applicable
laws of the United States of America in all respects, including construction,
validity and performance.
Section 5.5. Counterparts; Fax. This Amendment may be separately
executed in counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to constitute one
and the same Amendment. This Amendment may be validly executed by facsimile or
other electronic transmission.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, this Amendment is executed as of the date first
above written.
CHESAPEAKE EXPLORATION LIMITED PARTNERSHIP
By: Chesapeake Operating, Inc., its general
partner
By: /s/ XXXXXX X. XXXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
CHESAPEAKE ENERGY CORPORATION
By: /s/ XXXXXX X. XXXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
UNION BANK OF CALIFORNIA, N.A.
Administrative Agent, Collateral Agent,
Issuing Lender and Lender
By: /s/ XXXXXXX XXXXXXXXX
---------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
By: /s/ XXXX XXXXXX
---------------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Vice President
BANK OF OKLAHOMA, N.A.
By: /s/ XXXX X. XXXX
---------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
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BANK OF SCOTLAND
By: /s/ XXXXXX XXXXXX
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
BEAR XXXXXXX CORPORATE LENDING INC.
By: /s/ XXXXXX XXXXXXXXXXXX
---------------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President
BNP PARIBAS
By: /s/ XXXXX XXXXXX /S/ X. XXXXXXXX
---------------------------------------
Name: Xxxxx Xxxxxx X. Xxxxxxxx
Title: Vice President Director
COMERICA BANK - TEXAS
By: /s/ XXXXX X. XXXXXX
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Corporate Banking Officer
COMPASS BANK
By: /s/ XXXXXXXX X. XXXXX
---------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
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CREDIT AGRICOLE INDOSUEZ
By:
---------------------------------------
Name:
Title:
NATEXIS BANQUES POPULAIRES
/s/ XXXXXX X. X'XXXXXX By: /s/ XXXXXXX X. XXXXXXXXX
------------------------- ---------------------------------------
Xxxxxx X. x'Xxxxxx Name: Xxxxxxx X. Xxxxxxxxx
Senior Vice President and Title: Vice President
Regional Manager
PNC BANK, NATIONAL ASSOCIATION
By: /s/ XXXX XXXXX
---------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
RZB FINANCE LLC
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
SUMITOMO MITSUI BANKING
CORPORATION
By:
---------------------------------------
Name:
Title:
00
XXXXXXX XXXXXXXX (XXXXX), INC.
By: /s/ XXXXX XXXXXX
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ XXXX X. XXXXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
WASHINGTON MUTUAL BANK, FA
By: /s/ XXXX X. XXXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:
---------------------------------------
Name:
Title:
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First Amendment
CONSENT AND AGREEMENT
By its execution below, each Guarantor hereby (i) consents to the
provisions of this Amendment and the transactions contemplated herein, (ii)
ratifies and confirms the Guarantee Agreement dated as of June 11, 2001 made by
it for the benefit of Administrative Agent and Lenders and the other Loan
Documents executed pursuant to the Credit Agreement (Xxxxxx Acquisition Corp.
and Sap Acquisition Corp. having become parties thereto by execution and
delivery of that certain Assumption Agreement of even date herewith), (iii)
agrees that all of its respective obligations and covenants thereunder shall
remain unimpaired by the execution and delivery of this Amendment and the other
documents and instruments executed in connection herewith, and (iv) agrees that
the Guarantee Agreement and such other Loan Documents shall remain in full force
and effect.
CHESAPEAKE ENERGY CORPORATION
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
THE XXXX COMPANY, INC.
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
CHESAPEAKE ACQUISITION CORPORATION
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
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CHESAPEAKE ENERGY LOUISIANA CORPORATION
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
CHESAPEAKE OPERATING, INC.
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
CHESAPEAKE PANHANDLE LIMITED PARTNERSHIP
By: CHESAPEAKE OPERATING, INC., its General Partner
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
CHESAPEAKE ROYALTY COMPANY
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
CHESAPEAKE-STAGHORN ACQUISITION L .P.
By: CHESAPEAKE OPERATING, INC., its General Partner
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
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CHESAPEAKE LOUISIANA, L.P.
By: CHESAPEAKE OPERATING, INC., its General Partner
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
GOTHIC ENERGY CORPORATION
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
GOTHIC PRODUCTION CORPORATION
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
NOMAC DRILLING CORPORATION
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
XXXXXX ACQUSITION CORP.
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
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SAP ACQUISITION CORP.
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
CHESAPEAKE MOUNTAIN FRONT CORP.
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
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