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EXHIBIT 4.7.1
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (herein
called this "Amendment") is made effective as of the 31st day of July, 2000 by
and among Chesapeake Exploration Limited Partnership, an Oklahoma limited
partnership ("Borrower"), Chesapeake Energy Corporation, an Oklahoma corporation
("CEC"), certain other Subsidiaries of CEC (the "Subsidiary Guarantors"), Union
Bank of California, N.A. ("Union Bank"), as administrative agent (in such
capacity, the "Administrative Agent") and documentation agent, Bear Stearns
Corporate Lending Inc. ("Bear Stearns"), as syndication agent (in such capacity,
the "Syndication Agent"), Union Bank and Bear Stearns & Co. Inc., as Co-Lead
Arrangers, and certain financial institutions party hereto ("Lenders").
WITNESSETH:
WHEREAS, Borrower, CEC and the Subsidiary Guarantors, as guarantors,
Union Bank of California, N.A., as initial Lender and Administrative Agent
entered into that certain Amended and Restated Credit Agreement dated as of May
30, 2000 (the "Original Agreement") for the purposes and consideration therein
expressed; and
WHEREAS, pursuant to that certain Assignment and Assumption Agreement
of even date herewith by and between Union Bank and Bear Stearns, Union Bank has
sold and assigned to Bear Stearns, as a lender, a fifty-percent (50%) interest
in and to all of Union Bank's rights and obligations under the Original
Agreement and the other Loan Documents; and
WHEREAS, Borrower, CEC, the Subsidiary Guarantors, Administrative Agent
and Syndication Agent and Lenders desire to amend the Original Agreement as
expressly 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.
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"Amendment" means this First Amendment to Credit Agreement.
"Credit Agreement" means the Original Agreement as amended hereby.
ARTICLE II.
AMENDMENTS TO ORIGINAL AGREEMENT
Section 2.1. Defined Terms. Section 1.1 of the Original Agreement is
hereby amended as follows:
(a) The definition of "Chesapeake Marketing" is hereby amended
in its entirety to read as follows:
" 'Chesapeake Marketing' means Chesapeake Energy Marketing,
Inc., an Oklahoma corporation."
(b) The definition of "Maximum Loan Amount" is hereby amended
in its entirety to read as follows:
" 'Maximum Loan Amount' means the amount of $100,000,000."
(c) The definition of "Required Lenders" is hereby deleted.
(d) The definition of "Senior Debt Limit" is hereby amended as
follows:
The reference to "Section 4.8" is changed to "Section 4.9".
(e) The definition of "Syndication Agent" is hereby added to
read as follows:
" 'Syndication Agent' means Bear Stearns Corporate Lending
Inc., as Syndication Agent hereunder, and its successors in such
capacity."
Section 2.2. Majority Lenders. All references to "Required Lenders" in
Sections 1.1, 2.7(b)(iii), 2.9 and 7.5(d) of the Original Agreement are hereby
changed to "Majority Lenders".
Section 2.3. Agents' Fees. Section 2.5(b) of the Original Agreement is
hereby restated for the purposes of this Amendment:
"(b) Fees. In addition to all other amounts due to Agent
and Syndication Agent under the Loan Documents, Borrower will pay
fees to Agent and Syndication Agent as described in a letter
agreement dated July 17, 2000 between Agent, Syndication Agent and
Borrower."
Section 2.4. Extension of Maturity Date. Section 2.17 is hereby added
to the Original Agreement to read as follows:
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"Section 2.17. Option to Extend Maturity Date. On the last day
of the Commitment Period, unless sooner paid as provided herein, all
Loans shall be paid in full; provided that, upon Borrower's (i) written
notice to Agent and Lenders of its intention to do so, given at least
thirty (30) days prior to the Maturity Date and specifying the
principal amount of Loans that will be outstanding on the Maturity Date
and (ii) payment to Agent, on the Maturity Date for the account of each
Lender, an amount equal to one-half of one-percent (.50%) times the
Loans of each Lender outstanding on the Maturity Date, all Loans
outstanding on the Maturity Date (but not to exceed the amount so
specified in such written notice ) shall be due and payable in six (6)
consecutive monthly installments, each of which shall be equal to
one-sixth (1/6) of all Loans outstanding on the Maturity Date, and
shall be due and payable on the 15th day of each calendar month,
beginning August 15, 2002 and continuing regularly thereafter until
January 15, 2003, at which time the unpaid principal balance of the
Loans and all interest accrued thereon shall be due and payable in
full."
Section 2.5. Limitation on Dividends and Redemptions. Section 7.6 of
the Original Agreement is hereby amended in its entirety to read as follows:
"Section 7.6. Limitation on Dividends and Redemptions. No
Restricted Person will declare or pay any dividends on, or make any
other distribution in respect of, any class of its capital stock or any
partnership or other interest in it, nor will any Restricted Person
directly or indirectly make any capital contribution to or purchase,
redeem, acquire or retire any shares of the capital stock of or
partnership interests in any Restricted Person (whether such interests
are now or hereafter issued, outstanding or created), or cause or
permit any reduction or retirement of the capital stock of any
Restricted Person, except as expressly provided in this section.
Dividends, distributions, contributions, purchases, redemptions,
acquisitions, retirements or reductions may be made by any Restricted
Person to another Restricted Person. Dividends on Parent's 7%
Cumulative Convertible Preferred Stock ("Preferred Stock") accrued for
the Fiscal Quarter then most recently ended may be paid by Parent
during each Fiscal Quarter beginning with a payment in the Fiscal
Quarter ended September 30, 2000 (in respect of dividends accrued for
the Fiscal Quarter ended June 30, 2000) provided (i) such dividends
declared and paid in any Fiscal Quarter shall not exceed $.875 per
share of Preferred Stock and (ii) at the time any such dividend is so
declared and after giving effect to such declaration and payment, no
Event of Default will result under Section 7.12 and no other Default or
Event of Default will have occurred and be continuing or will result
from such declaration and payment. No other dividends of any type to
any Person shall be paid without the prior written consent of the Agent
and Majority Lenders."
Section 2.6. Other Agents. Section 9.10 is hereby added to the Original
Agreement to read as follows:
"Section 9.10. Other Agents. The Syndication Agent, in such
capacity, shall not have any duties or responsibilities or incur any
obligation or liabilities under this Agreement or other Loan
Documents."
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Section 2.7. Borrowing Base. As of the date hereof and until compliance
with the conditions set forth in the immediately following sentence of this
paragraph, the Borrowing Base shall be $75,000,000. Upon (i) Borrower's
execution, acknowledgment and delivery to Agent of Security Documents in form
and substance satisfactory to Agent, granting to Agent, on behalf of the
Lenders, first perfected Liens on and in the properties listed on Schedule 1
attached hereto and (ii) completion by counsel to Agent of title review in
respect of the properties listed on Schedule 2 attached hereto satisfactory in
form and scope to Agent reflecting to Agent's satisfaction, that Borrower has
good and defensible title to such properties free and clear of all Liens other
than Permitted Liens and such other matters as Agent shall specify, the
Borrowing Base shall be $100,000,000. Nothing in this paragraph shall prevent
the Borrowing Base from continuing to be subject to the provisions of Sections
2.9 and 2.10 of the Original Agreement.
ARTICLE III.
CONDITIONS OF EFFECTIVENESS
Section 3.1 This Amendment shall become effective as of the date first
above written when, and only when Administrative Agent shall have received the
following, at Administrative Agent's office in Los Angeles, California, duly
executed and delivered in form, substance and date satisfactory to Agent:
(a) This Amendment and any other documents that Administrative
Agent, Syndication Agent and Lenders are to execute in connection
herewith.
(b) Certain certificates of Borrower including:
(i) 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 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); and
(ii) A "Compliance Certificate" of the Chairman of
the Board or President and of the chief financial officer of
Parent, of even date with such Loan
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or such Letter of Credit, in which such officers certify to
the satisfaction of the conditions set out in subsections (a),
(b), (c) and (d) of Section 4.2 of the Original Agreement.
(c) Documents similar to those specified in subsection (b)(i)
of this Section with respect to each Guarantor (which may, with respect
to charter documents or bylaws, reference documents previously
delivered in connection with the Original Agreement).
(d) A favorable opinion of Messrs. Self, Giddens and Lees,
counsel for Restricted Persons, substantially in the form set forth in
Exhibit F of the Original Agreement.
(e) A certificate executed by the chief financial officer of
Parent of even date herewith reflecting the computation of the then
current Senior Debt Limit together with supporting information
satisfactory to Agent.
(f) Payment of all commitment, facility, agency and other fees
required to be paid to any Bank Party pursuant to the letter agreement
referred to in Section 2.3 of this Amendment.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties of Borrower and CEC. In
order to induce Administrative Agent, Syndication Agent and Lenders to enter
into this Amendment, Borrower and CEC represent and warrant to Administrative
Agent, Syndication Agent and Lenders that:
(a) The representations and warranties contained in Article V,
subsections 5.01 to 5.19, inclusive, of the Original Agreement are true
and correct at and as of the time of the effectiveness hereof.
(b) Borrower, CEC and the Subsidiary Guarantors 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
obligations under the Credit Agreement. Borrower, CEC and the
Subsidiary Guarantors have duly taken all partnership and corporate
action necessary to authorize the execution and delivery of this
Amendment and to authorize the performance of the obligations of
Borrower, CEC and the Subsidiary Guarantors hereunder.
(c) The execution and delivery by Borrower, CEC and the
Subsidiary Guarantors of this Amendment, the performance by Borrower,
CEC and the Subsidiary Guarantors of their 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 the articles of incorporation and bylaws of Borrower or
CEC, or of any material agreement, judgment, license, order or permit
applicable to or binding upon
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Borrower, CEC and the Subsidiary Guarantors, or result in the creation
of any lien, charge or encumbrance upon any assets or properties of
Borrower, CEC and the Subsidiary Guarantors. 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 Borrower, CEC and the
Subsidiary Guarantors of this Amendment or to consummate the
transactions contemplated hereby.
(d) When duly executed and delivered, this Amendment and the
Credit Agreement will each be a legal and binding obligation of
Borrower, CEC and the Subsidiary Guarantors, 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 Consolidated financial statements of the
Parent dated as of December 31, 1999 and the unaudited Consolidated
financial statements of the Parent dated as of March 31, 2000, fairly
present the Parent's Consolidated financial position at such date and
the Consolidated results of the Parent's operations and changes in the
Parent's Consolidated cash flow for the period thereof. Copies of such
financial statements have heretofore been delivered to Administrative
Agent, Syndication Agent and Lenders.
ARTICLE V.
MISCELLANEOUS
Section 5.1. Ratification of Agreements. The Original Agreement as
hereby amended and each other Loan Document affected hereby are 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 or therein, operate as a waiver of any
right, power or remedy of Administrative Agent, Syndication Agent or Lenders
under the Credit Agreement or any other Loan Document nor constitute a waiver of
any provision of the Credit Agreement or any other Loan Document.
Section 5.2. Survival of Agreements. All representations, warranties,
covenants and agreements of Borrower, CEC and the Subsidiary Guarantors herein
shall survive the execution and delivery of this Amendment and the performance
hereof, including without limitation the making or granting of the Loan, 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 Borrower or CEC or any Subsidiary Guarantor hereunder or under the Credit
Agreement to Administrative Agent, Syndication Agent or Lenders shall be deemed
to constitute representations and warranties by, and/or agreements and covenants
of, Borrower, CEC and the Subsidiary Guarantors under this Amendment and under
the Credit Agreement.
Section 5.3. Consent of Guarantors. Each of the undersigned Guarantors
hereby consents to the provisions of this Amendment and the transactions
contemplated herein and hereby (i)
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acknowledges and agrees that any and all indebtedness, liabilities or
obligations arising under or in connection with the Notes are Obligations and
are secured indebtedness under, and are secured by, each and every Security
Document to which it is a party, (ii) re-pledges, re-grants and re-assigns a
security interest in and lien on all of its assets described as collateral in
any Security Document, (iii) ratifies and confirms its Guaranty dated May 30,
2000 made by it for the benefit of Administrative Agent and Lenders, and (iv)
expressly acknowledges and agrees that such Guarantor guarantees all
indebtedness, liabilities and obligations arising under or in connection with
the Notes pursuant to the terms of such Guaranty, and agrees that its
obligations and covenants thereunder are unimpaired hereby and shall remain in
full force and effect.
Section 5.4. Release of Claims. Borrower hereby releases and forever
discharges Administrative Agent, Syndication Agent and Lenders, together with
their employees, agents, attorneys, officers, and directors (all of the
foregoing hereinafter called the "Released Parties"), from any and all actions
and causes of action, judgments, executions, suits, debts, claims, demands,
liabilities, obligations, damages and expenses of any and every character, known
or unknown, direct and/or indirect, at law or in equity, of whatsoever kind or
nature, whether heretofore or hereafter accruing, for or because of any matter
or things done, omitted or suffered to be done by any of the Released Parties
prior to and including the date hereof, and in any way directly or indirectly
arising out of or in any way connected to the Original Agreement, including but
not limited to claims of usury (although no such claims are known to exist) (all
of the foregoing hereinafter called the "Released Matters"). Borrower
acknowledges that the agreements in this Section 5.4 are intended to cover and
be in full satisfaction for all or any alleged injuries or damages arising in
connection with the Released Matters herein compromised and settled.
Section 5.5. Loan Documents. This Amendment is a Loan Document, and all
provisions in the Credit Agreement pertaining to Loan Documents apply hereto.
Section 5.6. Governing Law. This Amendment shall be governed by and
construed in accordance 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 5.7. Counterparts. 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 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 BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above by their duly authorized officers.
CHESAPEAKE EXPLORATION LIMITED PARTNERSHIP,
BORROWER
By: Chesapeake Operating, Inc.,
its general partner
By:
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Martha A. Burger
Treasurer
CHESAPEAKE ENERGY CORPORATION,
GUARANTOR
By:
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Martha A. Burger
Treasurer
CHESAPEAKE PANHANDLE LIMITED
PARTNERSHIP,
GUARANTOR
By: Chesapeake Operating, Inc.,
its general partner
By:
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Martha A. Burger
Treasurer
CHESAPEAKE LOUISIANA, L.P.,
GUARANTOR
By: Chesapeake Operating, Inc.,
its general partner
By:
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Martha A. Burger
Treasurer
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CHESAPEAKE ACQUISITION CORPORATION,
GUARANTOR
By:
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Martha A. Burger
Treasurer
CHESAPEAKE OPERATING, INC.,
GUARANTOR
By:
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Martha A. Burger
Treasurer
CHESAPEAKE ENERGY LOUISIANA CORPORATION,
GUARANTOR
By:
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Martha A. Burger
Treasurer
CHESAPEAKE ROYALTY COMPANY,
GUARANTOR
By:
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Martha A. Burger
Treasurer
ARKOMA PITTSBURG HOLDING CORPORATION,
GUARANTOR
By:
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Martha A. Burger
Treasurer
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UNION BANK OF CALIFORNIA, N.A.,
ADMINISTRATIVE AGENT, DOCUMENTATION AGENT, LC
ISSUER, LENDER AND CO-LEAD ARRANGER
By:
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Name:
Title:
By:
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Name:
Title:
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BEAR STEARNS CORPORATE LENDING INC.,
SYNDICATION AGENT AND LENDER
By:
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Name:
Title:
BEAR STEARNS & CO. INC.,
CO-LEAD ARRANGER
By:
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Name:
Title: