Exhibit 4.4.1
LIMITED WAIVER AND CONSENT
RECITALS:
Reference is made to that certain Seventh Amended and Restated Credit Agreement dated as of November 2, 2007 (the “Agreement”), among Chesapeake Energy Corporation (“CEC”), Chesapeake Exploration, L.L.C. (“Chesapeake Exploration”) and Chesapeake Appalachia, L.L.C. (“Chesapeake Appalachia”, and together with Chesapeake Exploration, collectively, “Borrowers”), Union Bank of California, N.A., as Administrative Agents (“Agent”), the other agents named therein and the Lenders from time to time parties thereto (“Lenders”). Terms used and not defined herein shall have the meanings given them in the Agreement.
Chesapeake Appalachia intends to execute a conveyance (the “VPP Conveyance”) of a volumetric production payment (the “VPP”) to be carved out of its working interests in approximately 4,200 specified presently producing wells (the “VPP Wells”) in Kentucky and West Virginia that are not included in the Collateral. The VPP Conveyance will not cover any other wells in which Chesapeake Appalachia owns an interest. In connection with the VPP, Chesapeake Appalachia intends to (i) enter into a Purchase and Sale Agreement (the “VPP PSA”), containing certain representations, warranties and covenants relating to the VPP and the VPP Wells and a restriction on further assignments of the VPP Wells, (ii) enter into a Gas Purchase Contract with the buyer of the VPP (the “Gas Purchase Contract”) to purchase the VPP buyer’s share of production at or near the wellhead at an index price (reduced for anticipated and estimated shrinkage and escalating transportation costs) and (iii) grant Liens on its retained interests in the VPP Wells and the production therefrom and its rights, titles and interests related thereto pursuant to one or more mortgages and deeds of trust (the “VPP Mortgages”), to secure performance of its ongoing covenants and obligations pursuant to the VPP Conveyance, the VPP PSA, and the Gas Purchase Contract. CEC intends to guaranty (the “CEC Guaranty”) Chesapeake Appalachia’s performance of these same covenants and obligations.
CEC and Borrowers have requested that Agent and Lenders constituting Majority Lenders consent to, and waive certain violations of the Agreement which would otherwise result from, the transactions described above.
LIMITED WAIVER AND CONSENT:
Subject to the conditions and limitations set forth below, Agent and Lenders hereby (i) consent to the conveyance of the VPP and the entering into and performance of the VPP Mortgages and the CEC Guaranty, and (ii) waive any violations of (A) Section 7.02 of the Agreement that would result from the Indebtedness of Chesapeake Appalachia in respect of the VPP and the Indebtedness of CEC in respect of the CEC Guaranty, (B) Section 7.03 of the Agreement that would result from the Liens under the VPP Mortgages, and (C) Section 7.12 of the Agreement that would result from any restrictions on Chesapeake Appalachia’s ability to assign or grant Liens on its retained interests in the VPP Wells and the assets subject to the VPP Mortgages.
[LIMITED WAIVERAND CONSENT]
For the avoidance of doubt with respect to the treatment of the VPP under the Credit Agreement, CEC, Borrowers and Lenders acknowledge and agree that, (i) Consolidated Indebtedness shall not include any Indebtedness in respect of the VPP and (ii) without duplication with respect to any other provision subtracting or excluding such income or gain in determining Consolidated EBITDA, any income or gain reflected in Consolidated Net Income for any period in respect of the VPP shall be subtracted from Consolidated Net Income for purposes of determining Consolidated EBITDA for such period.
Notwithstanding anything to the contrary under the Credit Agreement, CEC and Borrowers agree that no Group Member shall enter into or be subject to any Qualifying Production Call Obligation, and the exclusion of Qualifying Production Call Obligations from (i) the definition of “Indebtedness” in the Agreement and (ii) the restrictions on Liens provision under Section 7.3(o) of the Agreement, shall no longer be applicable.
LIMITATIONS AND CONDITIONS:
This Limited Waiver and Consent shall be effective when executed or consented to by Majority Lenders. Borrowers and CEC hereby represent and warrant to Agent and Lenders that immediately after giving effect to this Limited Waiver and Consent there shall exist no Default or Event of Default and immediately after giving effect to this Limited Waiver and Consent all representations and warranties contained herein, in the Agreement or otherwise made in writing by any Group Member in connection herewith or therewith shall be true and correct in all material respects with the same force and effect as if those representations and warranties had been made on and as of the date hereof.
Except as expressly waived or agreed herein, all covenants, obligations and agreements of Borrowers and CEC contained in the Agreement shall remain in full force and effect in accordance with their terms. Without limitation of the foregoing, the consents, waivers and agreements set forth herein are limited precisely to the extent set forth herein 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 Agreement or any of the documents referred to therein, or (b) except as expressly set forth herein, prejudice any right or rights which Agent or any Lender may now have or may have in the future under or in connection with the Agreement or any of the documents referred to therein. Except as expressly modified hereby, the terms and provisions of the Agreement and any other documents or instruments executed in connection with any of the foregoing, are and shall remain in full force and effect, and the same are hereby ratified and confirmed by Borrowers and CEC in all respects.
This Limited Waiver and Consent and the rights and obligations of the parties hereunder shall be construed in accordance with and be governed by the laws of the State of Texas.
This Limited Waiver and Consent and the documents referred to herein represent the entire understanding of the parties hereto regarding the subject matter hereof and supersede all prior and contemporaneous oral and written agreements of the parties hereto with respect to the subject matter hereof. This Limited Waiver and Consent is a “Loan Document” as defined and described in the Agreement and all of the terms and provisions of the Agreement relating to Loan Documents shall apply hereto.
[LIMITED WAIVERAND CONSENT]
This Limited Waiver and Consent 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 agreement.
[Remainder of page intentionally left blank.]
[LIMITED WAIVERAND CONSENT]
IN WITNESS WHEREOF, the undersigned parties have executed this Limited Waiver and Consent as of the 12th day of December, 2007.
CHESAPEAKE EXPLORATION, L.L.C. | ||
| By: | /s/ Jennifer M. Grigsby | |
| Jennifer M. Grigsby | ||
| Senior Vice President and Treasurer | ||
| CHESAPEAKE APPALACHIA, L.L.C. | ||
| By: | /s/ Jennifer M. Grigsby | |
| Jennifer M. Grigsby | ||
| Senior Vice President and Treasurer | ||
| CHESAPEAKE ENERGY CORPORATION | ||
| By: | /s/ Jennifer M. Grigsby | |
| Jennifer M. Grigsby | ||
| Senior Vice President and Treasurer | ||
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
UNION BANK OF CALIFORNIA, N.A. as Administrative Agent, as Swing Line Lender, as an Issuing Lender and as a Lender | ||
| By: | /s/ Randall L. Osterberg | |
| Name: | Randall L. Osterberg | |
| Title: | Vice President – US Marketing Manager | |
| By: | /s/ Timothy Brendel | |
| Name: | Timothy Brendel | |
| Title: | Assistant Vice President | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
THE ROYAL BANK OF SCOTLAND PLC, as Syndication Agent, as an Issuing Lender and as a Lender | ||
| By: | /s/ Scott L. Joyce | |
| Name: | Scott L. Joyce | |
| Title: | Senior Vice President | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
BNP PARIBAS, as Co-Documentation Agent and as a Lender | ||
| By: | /s/ David Dodd | |
| Name: | David Dodd | |
| Title: | Managing Director | |
| By: | /s/ Richard Hawthorne | |
| Name: | Richard Hawthorne | |
| Title: | Vice President | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
BANK OF AMERICA, N.A., as Co-Documentation Agent and as a Lender | ||
| By: | /s/ Ronald E. McKaig | |
| Name: | Ronald E. McKaig | |
| Title: | Senior Vice President | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
SUNTRUST BANK, as Co-Documentation Agent and as a Lender | ||
| By: | /s/ Sean Roche | |
| Name: | Sean Roche | |
| Title: | Vice President | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| CALYON NEW YORK BRANCH, | ||
| as a Lender | ||
| By: | /s/ Dennis E. Petito | |
| Name: | Dennis E. Petito | |
| Title: | Managing Director | |
| By: | /s/ Michael D. Willis | |
| Name: | Michael D. Willis | |
| Title: | Director | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender | ||
| By: | /s/ H.R. Biedrzychki | |
| Name: | H.R. Biedrzychki | |
| Title: | Director | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| WELLS FARGO BANK, N.A., as a Lender | ||
| By: | /s/ Dustin S. Hansen | |
| Name: | Dustin S. Hansen | |
| Title: | Vice President | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| BANK OF SCOTLAND PLC, as a Lender | ||
| By: | /s/ Karen Weich | |
| Name: | Karen Weich | |
| Title: | Vice President | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| CITICORP USA, INC., as a Lender | ||
| By: | /s/ David Hunt | |
| Name: | David Hunt | |
| Title: | Vice President | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
BMO CAPITAL MARKETS FINANCING, INC., as a Lender | ||
| By: | /s/ Mary Lou Allen | |
| Name: | Mary Lou Allen | |
| Title: | Vice President | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| THE BANK OF NOVA SCOTIA, as a Lender | ||
| By: | /s/ Andrew Ostrov | |
| Name: | Andrew Ostrov | |
| Title: | Director | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| U.S. BANK NATIONAL ASSOCIATION, as a Lender | ||
| By: | /s/ Daria Mahoney | |
| Name: | Daria Mahoney | |
| Title: | Vice President | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| BARCLAYS BANK PLC, as a Lender | ||
| By: | /s/ Joseph Gyurindak | |
| Name: | Joseph Gyurindak | |
| Title: | Director | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| ABN AMRO BANK N.V., as a Lender | ||
| By: | /s/ J.A. Conn | |
| Name: | J.A. Conn | |
| Title: | Managing Director | |
| By: | /s/ John D. Reed | |
| Name: | John D. Reed | |
| Title: | Director | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| NATIXIS, as a Lender | ||
| By: | /s/ Donovan C. Broussard | |
| Name: | Donovan C. Broussard | |
| Title: | Managing Director | |
| By: | /s/ Louis P. Laville, III | |
| Name: | Louis P. Laville, III | |
| Title: | Managing Director | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| COMERICA BANK, as a Lender | ||
| By: | /s/ Peter L. Sefzik | |
| Name: | Peter L. Sefzik | |
| Title: | Vice President | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| BANK OF OKLAHOMA, N.A., as a Lender | ||
| By: | /s/ Mike Weatherholt | |
| Name: | Mike Weatherholt | |
| Title: | Officer | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| TORONTO DOMINION (TEXAS) LLC, as a Lender | ||
| By: | /s/ Debbi L. Brito | |
| Name: | Debbi L. Brito | |
| Title: | Authorized Signatory | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| PNC BANK, NATIONAL ASSOCIATION, as a Lender | ||
| By: | /s/ Kay Murphy | |
| Name: | Kay Murphy | |
| Title: | Vice President | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| COMPASS BANK, as a Lender | ||
| By: | /s/ Kathleen J. Bowen | |
| Name: | Kathleen J. Bowen | |
| Title: | Senior Vice President | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| RZB FINANCE LLC, as a Lender | ||
| By: | /s/ Shirley Ritch | |
| Name: | Shirley Ritch | |
| Title: | Assistant Vice President | |
| By: | /s/ John A. Valiska | |
| Name: | John A. Valiska | |
| Title: | First Vice President | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| MIDFIRST BANK, as a Lender | ||
| By: | /s/ Steve A. Griffin | |
| Name: | Steve A. Griffin | |
| Title: | Senior Vice President | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| ARVEST BANK, as a Lender | ||
| By: | /s/ Cindy Batt | |
| Name: | Cindy Batt | |
| Title: | Senior Vice President | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| MORGAN STANLEY BANK, as a Lender | ||
| By: | /s/ Daniel Twenge | |
| Name: | Daniel Twenge | |
| Title: | Authorized Signatory | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| BEAR STEARNS CORPORATE LENDING INC., as a Lender | ||
| By: | /s/ Victor F. Bulzacchelli | |
| Name: | Victor F. Bulzacchelli | |
| Title: | Vice President | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as a Lender | ||
| By: | /s/ Brian Caldwell | |
| Name: | Brian Caldwell | |
| Title: | Director | |
| By: | /s/ Christopher Day | |
| Name: | Christopher Day | |
| Title: | Associate | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| UBS LOAN FINANCE LLC, as a Lender | ||
| By: | /s/ Richard L. Tavrow | |
| Name: | Richard L. Tavrow | |
| Title: | Director | |
| By: | /s/ Irja R. Otsa | |
| Name: | Irja R. Otsa | |
| Title: | Associate Director | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as a Lender | ||
| By: | /s/ Dusan Lazarov | |
| Name: | Dusan Lazarov | |
| Title: | Vice President | |
| By: | /s/ Omayra Laucella | |
| Name: | Omayra Laucella | |
| Title: | Vice President | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| GOLDMAN SACHS BANK USA, as a Lender | ||
| By: | /s/ William M. Yarbenet | |
| Name: | William M. Yarbenet | |
| Title: | Vice President | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| LEHMAN BROTHER COMMERCIAL BANK, as a Lender | ||
| By: | /s/ Brian McNany | |
| Name: | Brian McNany | |
| Title: | Authorized Signatory | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]
| GOLDMAN SACHS CREDIT PARTNERS L.P., as a Lender | ||
| By: | /s/ Pedro Ramirez | |
| Name: | Pedro Ramirez | |
| Title: | Authorized Signatory | |
[SIGNATURE PAGETO LIMITED WAIVERAND CONSENT]