Exhibit 4.1.4
FOURTH AMENDMENT
TO
REVOLVING CREDIT AGREEMENT
This Fourth Amendment ("Fourth Amendment") to Fourth Amended and Restated
Credit Agreement dated as of March 28, 2002, as amended by the First Amendment
thereto dated as of June 12, 2003, the Second Amendment thereto dated as of
October 22, 2003, and the Third Amendment thereto dated as of April 14, 2004 (as
amended, the "Credit Agreement"), originally by and among CONTINENTAL RESOURCES,
INC., an Oklahoma corporation (the "Borrower"), UNION BANK OF CALIFORNIA, N.A.,
as LC Issuer, Bank, Lead Arranger, Fronting Bank and Administrative Agent (in
such latter capacity and together with its successors and permitted assigns in
such capacity the "Administrative Agent"), GUARANTY BANK, FSB, as Co-Arranger,
Bank and Collateral/Documentation Agent, and FORTIS CAPITAL CORP., as
Co-Arranger, Bank and Syndication Agent, and the several banks and financial
institutions from time to time parties to the Credit Agreement (the "Banks") is
entered into this twenty-first day of July 2004.
W I T N E S S E T H:
WHEREAS, Borrower desires to obtain the written consent of Administrative
Agent and the Banks to sell its subsidiary, Continental Gas, Inc. ("CGI");
WHEREAS, in furtherance of the foregoing, Borrower and the Banks desire to
amend the Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and for Ten Dollars
($10.00) and other good and valuable consideration received by each party
hereto, and each intending to be legally bound hereby, the parties agree as
follows.
I. Amendments to Credit Agreement. The following modifications are made in
amendment to the Credit Agreement. For clarity, certain additions herein to the
existing language of the Credit Agreement are formatted with underlined text and
certain deletions from the existing language of the Credit Agreement are
formatted with strikethrough text. The formatting is only for purposes of
identifying the changes to the Credit Agreement, and such formatting is not
intended to become part of the Credit Agreement.
Article I, DEFINITIONS, of the Credit Agreement is hereby modified by
deleting in its entirety the definition "CGI Credit Agreement."
Article I, DEFINITIONS, of the Credit Agreement is hereby further modified
to amend and restate the following definitions in their entirety:
"Change of Control" means any of the following events: (a) any
"person" or "group" (within the meaning of Section 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"))
has become, directly or indirectly, the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person
shall be deemed to have "beneficial ownership" of all such shares that
any such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), by way of
merger, consolidation or otherwise, of a majority or more of the
common stock of Borrower on a fully-diluted basis, after giving effect
to the conversion and exercise of all outstanding warrants, options
and other securities of the Borrower (whether or not such securities
are then currently convertible or exercisable), (b) during any period
of two consecutive calendar quarters, individuals who at the beginning
of such period were officers of the Borrower and were also members of
the Borrower's board of directors cease for any reason to constitute a
majority of the directors of the Borrower then in office unless (i)
such new directors were elected by a majority of the directors of the
Borrower who constituted the board of directors of the Borrower at the
beginning of such period (or by directors so elected) or (ii) the
reason for such directors failing to constitute a majority is a result
of retirement by directors due to age, death or disability, (c) Harold
Hamm no longer owns a controlling beneficial interest or ownership in
Borrower, or (d) Harold Hamm is no longer chief executive officer of
Borrower.
"Guarantor(s)" means, individually and collectively, Continental
Resources of Illinois, Inc., Continental Crude Co. and all other
Subsidiaries of Borrower.
Section 4.01, Existence, is hereby amended and restated in its entirety to
read as follows:
The Borrower is a Business Entity of the type specified for such
Borrower on the signature pages of this Agreement, duly organized,
legally existing, and in good standing under the Laws of the State in
which it was organized; the Borrower has the lawful power to own their
properties and to engage in the businesses it conducts, and it is duly
qualified and in good standing as a foreign Business Entity in the
jurisdictions wherein the nature of the business transacted by it or
property owned by it makes such qualification necessary; the states in
which the Borrower is incorporated or organized and qualified to do
business are set forth in Schedule 4.01; the addresses of all places
of business of the Borrower are as set forth in Schedule 4.01;
Borrower has not changed its name, been the surviving company in a
merger, acquired any business, or changed its principal executive
office within five (5) years and one (1) month prior to the date
hereof; and Borrower has no Subsidiaries other than the Guarantors.
Borrower and each Guarantor is qualified under applicable Minerals
Management Service regulations to act as the operator of the Leases
where required.
Article V, Affirmative Covenants, is hereby amended by adding a new Section
5.35, Repayment of Funds Borrowed for Sale of CGI, to read as follows:
Repay any funds, borrowed under this Agreement for the purpose of
completing Borrower's sale of CGI, out of the proceeds from Borrower's
sale of CGI, no later than three Business Days after the execution
date of the Fourth Amendment to this Agreement.
Article V, Affirmative Covenants, is hereby amended by adding a new Section
5.36, Addition of Borrowing Base Oil and Gas Properties, to read as follows:
Comply with all terms and conditions of this Agreement relating to the
addition to Borrower's Borrowing Base Oil and Gas Properties of the
Oil and Gas Properties assigned to Borrower by CGI as described in
Schedule 6.04 of the Fourth Amendment to this Agreement, including but
not limited to delivering to the Administrative Agent Security
Instruments and Transfer Letter Orders as required by Section 3.03, no
later than sixty days after the execution date of the Fourth Amendment
to this Agreement.
Article V, Affirmative Covenants, is hereby amended by adding a new Section
5.37, Compliance with Indenture, to read as follows:
Comply with all terms and conditions of that certain Indenture dated
July 24, 1998 among Borrower, the Subsidiary Guarantors, as that term
is defined therein, and United States Trust Company of New York, under
which the Senior Subordinated Notes were issued, including but not
limited to Section 4.10 thereof with respect to the receipt and
application of "Net Proceeds" and disposition of "Excess Proceeds," as
those terms are defined therein, resulting from Borrower's sale of
Continental Gas, Inc.
Section 7.01, Enumeration of Events of Default is amended and clarified as
follows. The Second Amendment inserted a new subsection (i) and relabeled
existing subsections (i) and (j) as subsections (j) and (k). The Third Amendment
also inserted a new subsection (i) and relabeled existing subsections (i) and
(j) as subsections (j) and (k), without making reference to the subsection (k)
that had been relabeled by the Second Amendment. Under this Fourth Amendment,
the subsection (i) added by the Second Amendment and relabeled as subsection (j)
by the Third Amendment is hereby deleted, and subsections (i), (j), and (k), as
they existed prior to the Second Amendment or were added by the Third Amendment,
are hereby clarified and/or relabeled to read and remain in full force and
effect as follows:
(i) Borrower or any Guarantor shall fail within thirty (30) days to
pay, bond or otherwise discharge one or more (i) judgments or orders
for the payment of money in excess of One Million Dollars
$1,000,000.00 (or the equivalent thereof in currencies other than U.S.
Dollars) in the aggregate, or (ii) nonmonetary judgments or orders
which, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect, which judgment(s), in any such
case, is/are not stayed on appeal or otherwise being appropriately
contested in good faith;
(j) the Liens under the Security Instruments cease to be perfected
or cease to be first priority Liens subject to only Permitted
Encumbrances; or
(k) a Material Adverse Change occurs.
II. Conditions Precedent in Connection with the Fourth Amendment. The
Fourth Amendment shall not be binding on the Banks until satisfaction of the
following conditions precedent:
A. Administrative Agent shall have received fully executed
counterparts, in the number of multiple originals requested by
Administrative Agent, of the Fourth Amendment, duly executed by an
authorized officer for Borrower.
B. The representations and warranties contained in Article IV of the
Credit Agreement shall be true and correct in all material respects on
the date of the Fourth Amendment with the same effect as though such
representations and warranties had been made on such date; and no
Event of Default shall have occurred and be continuing or will have
occurred upon the execution of the Fourth Amendment.
C. Borrower shall have complied with all terms and conditions of the
Credit Agreement required for Borrower's sale of CGI, including but
not limited to obtaining written consent from Administrative Agent and
Required Banks as required by Article VI, in particular Section 6.04,
Sales of Assets, Section 6.05, Dividends, and Section 6.20, Amendment,
Termination or Waiver of Contracts with CGI. By their signatures
hereto, Administrative Agent and the Required Banks hereby consent, as
required by Article VI and Sections 6.04, 6.05 and 6.20 of the Credit
Agreement, to (i) the payment of a dividend of not more than
$14,900,000 to Borrower's shareholders, (ii) the sale by Borrower of
the capital stock of CGI to Borrower's shareholders, and (iii) the
amendment, termination or waiver of contracts between Borrower and
CGI, to the extent the foregoing are reasonably necessary for
Borrower's sale of CGI, which consent is subject to fulfillment of all
conditions precedent and all representations set forth in this Fourth
Amendment.
D. Borrower shall have complied with all terms and conditions of
that certain Indenture dated July 24, 1998 among CRI, the Subsidiary
Guarantors, as that term is defined therein, and United States Trust
Company of New York ("Indenture"), under which the Senior Subordinated
Notes (as that term is defined in the Credit Agreement) were issued,
required for Borrower's sale of CGI, including but not limited to
Section 4.7, Restricted Payments, and Section 4.10, Asset Sales.
E. All conditions precedent shall have been satisfied under the
First Amendment, dated as of the date of this instrument, to that
certain Term and Revolving Credit Agreement dated as of October 22,
2003 ("CGI Credit Agreement").
F. All legal matters incident to the consummation of the transactions
contemplated by the Fourth Amendment shall be satisfactory to special
counsel for the Banks.
G. All reasonable and documented legal fees owed by the Banks to
Porter & Hedges, L.L.P. in connection with the Fourth Amendment shall
have been paid by Borrower.
III. Representations and Warranties. To induce the Banks to enter into this
Fourth Amendment, the Borrower hereby reaffirms, as of the date hereof, its
representations and warranties contained in Article IV of the Credit Agreement
and in all other documents executed pursuant thereto, and additionally
represents and warrants as follows:
A. The execution and delivery of this Fourth Amendment and the
performance by the Borrower of its obligations under this Fourth
Amendment are within the Borrower's power, have been duly authorized
by all necessary corporate action, have received all necessary
governmental approval (if any shall be required), and do not and will
not contravene or conflict with any provision of law or of the charter
or by-laws of the Borrower or of any agreement binding upon the
Borrower.
B. The Credit Agreement as amended by this Fourth Amendment represents
the legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms subject
as to enforcement only to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally.
C. No Event of Default or Unmatured Event of Default has occurred and
is continuing as of the date hereof.
D. Since the date of the Agreement, Borrower has not formed or created
any new Subsidiaries.
E. Borrower has complied with all terms and conditions of the Credit
Agreement required for Borrower's sale of CGI, including but not
limited to obtaining written consent from Administrative Agent and
Required Banks as required by Article VI, in particular Section 6.04,
Sales of Assets, Section 6.05, Dividends, and Section 6.20, Amendment,
Termination or Waiver of Contracts with CGI.
F. CGI has complied with all terms and conditions of the CGI Credit
Agreement required for Borrower's sale of CGI, including but not
limited to obtaining written consent from the Administrative Agent and
the Required Banks thereunder as required by Article VI thereto, in
particular Section 6.11, Capital Stock of Borrower/Redemption of
Senior Subordinated Notes.
G. Borrower has complied with all terms and conditions of the
Indenture required for Borrower's sale of CGI, including but not
limited to Section 4.7, Restricted Payments, and Section 4.10, Asset
Sales.
H. CGI has assigned to Borrower certain of CGI's Oil and Gas
Properties described in Schedule 6.04 hereto and has complied with all
terms and conditions of the CGI Credit Agreement required for said
transfer, including but not limited to obtaining written consent from
the Administrative Agent and the Required Banks thereunder as required
by Article VI, Negative Covenants, thereto, in particular Section
6.04, Sales of Assets.
I. All conditions precedent have been satisfied under the First
Amendment to the CGI Credit Agreement, dated as of the date of this
instrument.
IV. Defined Terms. Except as amended hereby, terms used herein that are
defined in the Credit Agreement shall have the same meanings herein.
V. Reaffirmation of Credit Agreement. This Fourth Amendment shall be deemed
to be an amendment to the Credit Agreement, and the Credit Agreement, as further
amended hereby, is hereby ratified, approved and confirmed in each and every
respect. All references to the Credit Agreement herein and in any other
document, instrument, agreement or writing shall hereafter be deemed to refer to
the Credit Agreement as amended hereby.
VI. Entire Agreement. The Credit Agreement, as hereby amended, embodies the
entire agreement between the Borrower and the Banks and supersedes all prior
proposals, agreements and understandings relating to the subject matter hereof.
The Borrower certifies that it is relying on no representation, warranty,
covenant or agreement except for those set forth in the Credit Agreement, as
hereby amended, and in the other documents previously executed or executed of
even date herewith.
VII. Governing Law. THIS FOURTH AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA. This Fourth Amendment has been entered
into in Harris County, Texas, and it shall be performable for all purposes in
Harris County, Texas. Courts within the State of Texas shall have jurisdiction
over any and all disputes between the Borrower and the Banks, whether in law or
equity, including, but not limited to, any and all disputes arising out of or
relating to this Fourth Amendment or any other Security Instrument; and venue in
any such dispute whether in federal or state court shall be laid in Harris
County, Texas.
VIII. Severability. Whenever possible each provision of this Fourth
Amendment shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Fourth Amendment shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Fourth Amendment.
IX. Execution in Counterparts. This Fourth Amendment may be executed in any
number of counterparts and by the different parties on separate counterparts,
and each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same agreement.
X. Section Captions. Section captions used in this Fourth Amendment are for
convenience of reference only, and shall not affect the construction of this
Fourth Amendment.
XI. Successors and Assigns. This Fourth Amendment shall be binding upon the
Borrower and the Banks and their respective successors and assigns, and shall
inure to the benefit of the Borrower and the Banks, and the respective
successors and assigns of the Banks.
XII. Non-Application of Chapter 346 of Texas Finance Codes. In no event
shall Chapter 346 of the Texas Finance Code (which regulates certain revolving
loan accounts and revolving tri-party accounts) apply to this Credit Agreement
as hereby further amended or any other Loan Documents or the transactions
contemplated hereby.
XIII. Notice. THIS FOURTH AMENDMENT TOGETHER WITH THE LOAN AGREEMENT, AND
THE OTHER SECURITY INSTRUMENTS 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 WRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to be duly executed as of the day and year first above written.
BORROWER:
CONTINENTAL RESOURCES, INC.
By: /S/ ROGER CLEMENT
Roger Clement
Senior Vice President and Chief
Financial Officer
ADMINISTRATIVE AGENT, LEAD ARRANGER,
LC ISSUER, FRONTING BANK AND BANK:
UNION BANK OF CALIFORNIA, N.A.
By: /S/ ALI AHMED
Ali Ahmed,
Vice President
By: /S/ JOHN CLARK
John Clark,
Vice President
COLLATERAL/DOCUMENTATION
AGENT, CO-ARRANGER AND BANK:
GUARANTY BANK, FSB
By: /S/ RICHARD MENCHACA
Richard Menchaca,
Senior Vice President
SYNDICATION AGENT, CO-ARRANGER
AND BANK:
FORTIS CAPITAL CORP.
By: /S/ DARRELL W. HOLLEY
Darrell W. Holley,
Managing Director
By: /S/ CHRISTOPHER S. PARADA
Christopher S. Parada,
Vice President
CO-AGENT AND BANK:
THE ROYAL BANK OF SCOTLAND plc
By: /S/ JAMES R. MCBRIDE
Name: James R. McBride
Title: Managing Director
BANK:
WASHINGTON MUTUAL BANK, FA
By: /S/ DAVID W. PHILLIPS
David W. Phillips,
Vice President
Schedule 6.04
Phase I Phase II Phase I Phase II
Working Working Net Revenue Net Revenue
Well/Unit Name Legal Description County State Interest Interest Interest Interest
-------------- ----------------- ------ ----- -------- -------- ----------- -----------
Cedar Hills North Red Township 129 North, Range 106 West: All Bowman/ ND 0.01671645 0.01780166 0.01426658 0.01519304
River "B" Unit of Section 1 Slope
Cedar Hills North Red Township 130 North, Range 106 West: All Bowman/ ND 0.01671645 0.01780166 0.01426658 0.01519304
River "B" Unit of Sections 1, 2, 3, 4, 5, 9, 10, 11, Slope
12, 13, 14, 15, 16, 21, 22, 23, 24, 26,
27, 28, 34, 35 and 36; Lots 1-6, S/2
NE/4, SE/4, NW/4, NE/4 SW/4, SE/4 of
Section 6; NE/4 NE/4 of Section 7; E/2
E/2, NW/4 NE/4, SW/4 NE/4, NW/4, W/2
SE/4 of Section 8; NW/4 NE/4, S/2 NE/4,
S/2, NE/4 NE/4 of Section 17
Cedar Hills North Red Township 130 North, Range 107 West: Lot Bowman/ ND 0.01671645 0.01780166 0.01426658 0.01519304
River "B" Unit 1, SE/4 NE/4 of Section 1 Slope
Cedar Hills North Red Township 131 North, Range 106 West: All Bowman/ ND 0.01671645 0.01780166 0.01426658 0.01519304
River "B" Unit of Sections 17, 18, 19, 20, 21, 27, 28, Slope
29, 30, 31, 32, 33 and 34
Cedar Hills North Red Township 131 North, Range 107 West: All Bowman/ ND 0.01671645 0.01780166 0.01426658 0.01519304
River "B" Unit of Sections 1, 12, 13, 14, 24 and 25 Slope
Cedar Hills North Red Township 132 North, Range 106 West: All Bowman/ ND 0.01671645 0.01780166 0.01426658 0.01519304
River "B" Unit of Sections 4, 5, 6, 7, 8, 9, 15, 16, Slope
17, 18, 19, 20, 21, 22 and 23
Cedar Hills North Red Township 132 North, Range 107 West: All Bowman/ ND 0.01671645 0.01780166 0.01426658 0.01519304
River "B" Unit of Sections 1, 2, 3, 10, 11, 12, 13, 14, Slope
15, 22, 23, 24, 25 and 36
Cedar Hills North Red Township 133 North, Range 106 West: All Bowman/ ND 0.01671645 0.01780166 0.01426658 0.01519304
River "B" Unit of Sections 17, 18, 19, 20, 28, 29, 30, Slope
31, 32, 33 and 34
Fallon MT 0.02931323 0.02817116 0.02473551 0.02377179
West Cedar Hills Unit Township 6 North, Range 61 East: All of
Sections 2, 10, 11, 14, 15, 16, 21, 22,
23, 26, 27 and 28; SE/4 of Section 3,
SE/4 of Section 9 Fallon MT 0.02931323 0.02817116 0.02473551 0.02377179
West Cedar Hills Unit Township 7 North, Range 61 East: All of
Sections 22, 23, 26, 27 and 35, NE/4 of
Section 34 Bowman ND 0.01151741 0.00980162 0.00981036 0.00834888
Medicine Pole Hills Township 130 North, Range 105 West, 5th
South Red River "B" PM: All of Section 36
Unit
Medicine Pole Hills Township 130 North, Range 104 West, 5th Bowman ND 0.01151741 0.00980162 0.00981036 0.00834888
South Red River "B" PM: All of Section 36
Unit
Medicine Pole Hills Township 129 North, Range 105 West, 5th Bowman ND 0.01151741 0.00980162 0.00981036 0.00834888
South Red River "B" PM: All of Section 1
Unit
Medicine Pole Hills Township 129 North, Range 104 West, 5th Bowman ND 0.01151741 0.00980162 0.00981036 0.00834888
South Red River "B" PM: All of Sections 1, 2, 3, 6, 7, 8, 9,
Unit 10, 11, 15, 16, 17, 18, 20 and 21