EXHIBIT 99.2
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FIRST AMENDMENT
TO
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
(herein called this "AMENDMENT") is dated as of November 17, 2004 (but effective
on the Effective Date, defined below in Section 3.1) by and among Chesapeake
Exploration Limited Partnership, an Oklahoma limited partnership ("BORROWER"),
Chesapeake Energy Corporation, an Oklahoma corporation ("COMPANY"), Union Bank
of California, N.A., as administrative agent and collateral agent
("ADMINISTRATIVE AGENT"), and the several banks and other financial institutions
or entities party hereto ("LENDERS").
W I T N E S S E T H:
WHEREAS, Borrower, Company, Administrative Agent and Lenders entered
into that certain Fourth Amended and Restated Credit Agreement dated as of May
7, 2004 (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, 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
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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 Fourth Amended and
Restated Credit Agreement.
"CREDIT AGREEMENT" means the Original Agreement as amended
hereby.
"EFFECTIVE DATE" has the meaning given to such term in SECTION
ARTICLE II.
AMENDMENTS
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Section 2.1. DEFINED TERMS.
(a) The proviso at the end of the definition of "Applicable
Margin" in SECTION 1.1 of the Original Agreement is hereby amended in its
entirety to read as follows:
"PROVIDED, that, prior to January 1, 2006, the Applicable
Margin with respect to each Type of Revolving Loan will be set based on Level
III."
(b) The proviso at the end of the definition of "Commitment
Fee Rate" in SECTION 1.1 of the Original Agreement is hereby amended in its
entirety to read as follows:
"PROVIDED, that, prior to January 1, 2006, the Commitment Fee
Rate will be set based on Level III."
ARTICLE III.
CONDITIONS OF EFFECTIVENESS; CLOSING
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Section 3.1. EFFECTIVE DATE. This Amendment shall become effective
on the date when all of the following conditions precedent have been satisfied
(the "EFFECTIVE DATE").
(a) Administrative Agent shall have received, at Administrative Agent's
office, duly executed and delivered and in form and substance satisfactory to
Administrative Agent, all of the following:
(i) this Amendment duly executed by Borrower, Company and
Administrative Agent and each Lender;
(ii) the Consent Agreement attached hereto duly executed by
all Subsidiary Guarantors;
(iii) 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;
(iv) an "Omnibus Certificate" of the Secretary 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 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);
(v) a "Compliance Certificate" of the Treasurer of the
Company, which shall contain (1) a certification by such officer as to
the satisfaction of the conditions set out in subsections (a), (b), and
(c) of SECTION 5.2 of the Original Agreement and (2) the calculations
required to determine the Senior Debt Limit (along with the supporting
documentation described in SECTION 5.2(C) of the Original Agreement);
(vi) one or more certificates certifying documents similar to
those specified in subsection (iv) 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); and
(vii) such other supporting documents as Administrative Agent
may reasonably request.
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ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
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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.
(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, 2003 and the unaudited quarterly consolidated financial
statements of the Company dated as of September 30, 2004 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.
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ARTICLE V.
MISCELLANEOUS
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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.
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, such Loan Party 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 with the laws of the State of Texas 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.
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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 INTENTIONALLY LEFT BLANK.
SIGNATURE PAGES FOLLOW.]
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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/ MARTHA A. BURGER
--------------------------------
Name: Martha A. Burger
Title: Treasurer and
Sr. Vice President
Human Resources
CHESAPEAKE ENERGY CORPORATION
By: /S/ MARTHA A. BURGER
--------------------------------
Name: Martha A. Burger
Title: Treasurer and
Sr. Vice President
Human Resources
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
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UNION BANK OF CALIFORNIA, N.A.
Administrative Agent, Collateral Agent,
Issuing Lender and Lender
By: /S/ RANDALL OSTERBERG
--------------------------------
Name: Randall Osterberg
Title: Senior Vice President
By: /S/ KIMBERLY CALL
--------------------------------
Name: Kimberly Call
Title: Assistant Vice President
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
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First Amendment to
Fourth Amended and
Restated Credit Agreement
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 Second Amended and Restated Guarantee Agreement dated
as of May 7, 2004 made by it for the benefit of Administrative Agent and Lenders
(as modified by certain Assumption Agreements) and the other Loan Documents
executed pursuant to the Credit Agreement (or any prior amendment or supplement
to the Credit Agreement), (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 Second Amended and Restated Guarantee
Agreement and such other Loan Documents shall remain in full force and effect.
CHESAPEAKE ENERGY CORPORATION
By: /S/ MARTHA A. BURGER
--------------------------------
Martha A. Burger
Treasurer and Senior Vice
President - Human Resources
CHESAPEAKE OPERATING, INC.
By: /S/ MARTHA A. BURGER
--------------------------------
Martha A. Burger
Treasurer and Senior Vice
President - Human Resources
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
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CHESAPEAKE SOUTH TEXAS CORP.
CHESAPEAKE ENERGY LOUISIANA CORPORATION
NOMAC DRILLING CORPORATION
OXLEY PETROLEUM CO.
CHESAPEAKE PRH CORP.
CHESAPEAKE ENERGY MARKETING, INC.
CHESAPEAKE BNR CORP.
By: /S/ MARTHA A. BURGER
--------------------------------
Martha A. Burger, Treasurer,
on behalf of each of the
foregoing corporations
CARMEN ACQUISITION, L.L.C.
CHESAPEAKE ACQUISITION, L.L.C.
CHESAPEAKE ENO ACQUISITION, L.L.C.
CHESAPEAKE FOCUS, L.L.C.
CHESAPEAKE KNAN ACQUISITION, L.L.C.
CHESAPEAKE MOUNTAIN FRONT, L.L.C.
CHESAPEAKE ORC, L.L.C.
CHESAPEAKE ROYALTY, L.L.C.
CHESAPEAKE EP, L.L.C.
GOTHIC PRODUCTION, L.L.C.
MC MINERAL COMPANY, L.L.C.
SAP ACQUISITION, L.L.C.
JOHN C. OXLEY, L.L.C.
CHESAPEAKE PERMIAN ACQUISITION, L.L.C.
MAYFIELD PROCESSING, LLC
By: /S/ MARTHA A. BURGER
--------------------------------
Martha A. Burger, Treasurer, on
behalf of each of the forgoing
limited liability companies
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CHESAPEAKE LOUISIANA, L.P.
CHESAPEAKE SIGMA, L.P.
CHESAPEAKE PERMIAN, L.P.
CHESAPEAKE ZAPATA, L.P.
Chesapeake-Staghorn Acquisition, L.P.
CHESAPEAKE NFW, L.P.
CHESAPEAKE LNG, L.P.
By: Chesapeake Operating, Inc., as
General Partner on behalf of each of
the foregoing limited partnerships
By: /S/ MARTHA A. BURGER
--------------------------------
Martha A. Burger, Treasurer and
Senior Vice President -
Human Resources
MIDCON COMPRESSION, L.P.
By: Chesapeake Energy Marketing, Inc.,
as General Partner
By: /S/ MARTHA A. BURGER
--------------------------------
Martha A. Burger
Treasurer
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
10
ARVEST BANK
By: /S/ CINDY BATT
--------------------------------
Name: Cindy Bat
Title: Sr. Vice President
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
11
BANK OF AMERICA, N.A.
By: /S/ RONALD E. MCKAIG
--------------------------------
Name: Ronald E. McKaig
Title: Senior Vice President
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
12
BANK OF OKLAHOMA
By: /S/ MARK MORRIS
--------------------------------
Name: Mark Morris
Title: Vice President
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
13
BANK OF SCOTLAND
By: /S/ AMENA NABI
--------------------------------
Name: Amena Nabi
Title: Assistant Vice President
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
14
BNP PARIBAS
By: /S/ DAVID DODD
---------------------------------
Name: David Dodd
Title: Director
By: /S/ POLLY SCHOTT
--------------------------------
Name: Polly Schott
Title: Vice President
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
15
COMERICA BANK
By: /S/ PETER L. SEFZIK
--------------------------------
Name: Peter L. Sefzik
Title: Vice President
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
16
COMPASS BANK
By: /S/ KATHLEEN J. BOWEN
--------------------------------
Name: Kathleen J. Bowen
Title: Senior Vice President
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
17
CALYON NEW YORK BRANCH
By: /S/ OLIVER AUDEMAND
--------------------------------
Name: Oliver Audemand
Title: Managing Director
By: /S/ ATTILA COACH
--------------------------------
Name: Attila Coach
Title: Managing Director
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
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CREDIT SUISSE FIRST BOSTON, acting through
its Cayman Islands Branch
By: /S/ PAUL L. COLON
--------------------------------
Name: Paul L. Colon
Title: Director
By: /S/ VANESSA GOMEZ
--------------------------------
Name: Vanessa Gomez
Title: Associate
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
19
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: S/S MARCUS M. TARKINGTON
--------------------------------
Name: Marcus M. Tarkington
Title: Director
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
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J. ARON & COMPANY
By: S/S PETER O'HAGAN
--------------------------------
Name: Peter O'Hagan
Title: Managing Director
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
21
NATEXIS BANQUES POPULAIRES
By: S/S DONOVAN C. BROUSSARD
--------------------------------
Name: Donovan C. Broussard
Title: Vice President & Manager
By: /S/ TIMOTHY L. POLVADO
--------------------------------
Name: Timothy L. Polvado
Title: Vice President & Manager
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
22
PNC BANK
By: /S/ JOHN WATTINGER
--------------------------------
Name: John Wattinger
Title: Vice President
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
23
RZB FINANCE LLC
By: /S/ JUAN M. CSILLAGI
--------------------------------
Name: Juan M. Csillagi
Title: Group Vice President
By: /S/ CHRISTOPH HOEDL
--------------------------------
Name: Christoph Hoedl
Title: Vice President
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
24
SUNTRUST BANK
By: /S/ JOE MCCREERY
--------------------------------
Name: Joe McCreery
Title: Vice President
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
25
TORONTO DOMINION (TEXAS), INC.
By: /S/ NEVA NEXBITT
--------------------------------
Name: Neva Nexbitt
Title: Authorized Agent
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
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UBS LOAN FINANCE LLC
By: /S/ WILFRED V. SAINT
--------------------------------
Name: Wilfred V. Saint
Title: Director Banking
Products Services US
By: /S/ JOSALIN FERNANDES
--------------------------------
Name: Josalin Fernandes
Title: Associate Director
Banking Products
Services US
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
27
WELLS FARGO BANK, N.A.
By: /S/ DUSTIN S. HANSEN
--------------------------------
Name: Dustin S. Hansen
Title: Assistant Vice President
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
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