EXHIBIT 4.6.3
THIRD AMENDMENT
TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(herein called this "Amendment") made as of September 20, 2002 by and among
Chesapeake Exploration Limited Partnership, an Oklahoma limited partnership
("Borrower"), Chesapeake Energy Corporation, an Oklahoma corporation
("Company"), Bear Stearns 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 hereto ("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 Third Amendment to Second Amended and
Restated Credit Agreement.
"Credit Agreement" means the Original Agreement as amended
hereby.
ARTICLE II.
Amendment
Section 2.1. Restricted Payments. Paragraph (c) of Section 7.6 of the
Original Agreement is hereby amended to replace the reference to "$10,000,000"
with "$25,000,000".
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, 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;
(ii) 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);
(iii) a "Compliance Certificate" of the Chairman of the Board
or President and of the chief financial officer of the Company, which
shall contain (1) a certification by such officers 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
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the Senior Debt Limit (along with the supporting documentation
described in Section 5.2(c) of the Original Agreement);
(iv) documents similar to those specified in subsection (ii)
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
(v) 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.
(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
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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, 2001 and the unaudited quarterly consolidated financial
statements of the Company dated as of June 30, 2002 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.
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.
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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/ MARTHA A. BURGER
-------------------------------------------
Name: Martha A. Burger
Title: Treasurer & 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
UNION BANK OF CALIFORNIA, N.A.
Administrative Agent, Collateral Agent, Issuing
Lender and Lender
By: /s/ JOHN A CLARK
-------------------------------------------
Name: John A. Clark
Title: Vice President
By: /s/ SEAN MURPHY
-------------------------------------------
Name: Sean Murphy
Title: Assistant Vice President
BANK OF OKLAHOMA, N.A.
By: /s/ JOHN N. HUFF
--------------------------------------
Name: John N. Huff
Title: Vice President
BANK OF SCOTLAND
By: /s/ JOSEPH FRATUS
--------------------------------------
Name: Joseph Fratus
Title: First Vice President
BEAR STEARNS CORPORATE LENDING INC.
By: /s/ KEITH C. BARNISH
--------------------------------------
Name: Keith C. Barnish
Title: Executive Vice President
BNP PARIBAS
By: /s/ DAVID DODD
--------------------------------------
Name: David Dodd
Title: Director
By: /s/ BETSY JOCHER
--------------------------------------
Name: Betsy Jocher
Title: Vice President
COMERICA BANK - TEXAS
By: /s/ PETER L. SEFZIK
--------------------------------------
Name: Peter L. Sefzik
Title: Assistant Vice President
COMPASS BANK
By: /s/ KATHLEEN J. BOWEN
--------------------------------------
Name: Kathleen J. Bowen
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By:
-------------------------------------------
Name:
Title:
NATEXIS BANQUES POPULAIRES
By: /s/ DONOVAN C. BROUSSARD
-------------------------------------------
Name: Donovan C. Broussard
Title: Vice President
By: /s/ LOUIS P. LAVILLE, III
-------------------------------------------
Name: Louis P. Laville, III
Title: Vice President and Group Manager
PNC BANK, NATIONAL ASSOCIATION
By: /s/ DOUG CLARK
-------------------------------------------
Name: Doug Clark
Title: Vice President
RZB FINANCE LLC
By: /s/ JOHN A. VALISKA
-------------------------------------------
Name: John A. Valiska
Title: Group Vice President
By: /s/ FRANK J. YAUTZ
-------------------------------------------
Name: Frank J. Yautz
Title: First Vice President
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ WILLIAM M. GINN
-------------------------------------------
Name: William M. Ginn
Title: General Manager
TORONTO DOMINION (TEXAS), INC.
By: /s/ ANN S. SLANIS
-------------------------------------------
Name: Ann S. Slanis
Title: Vice President
WASHINGTON MUTUAL BANK, FA
By: /s/ MARK ISENSEE
-------------------------------------------
Name: Mark Isensee
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By:
-------------------------------------------
Name:
Title:
Third 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 (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 Guarantee Agreement and such other Loan Documents shall remain in full
force and effect.
CHESAPEAKE ENERGY CORPORATION
By: /s/ MARTHA A. BURGER
----------------------------------------
Name: Martha A. Burger
Title: Treasurer and Sr. Vice President Human Resources
THE AMES COMPANY, INC.
By: /s/ MARTHA A. BURGER
----------------------------------------
Name: Martha A. Burger
Title: Treasurer
CHESAPEAKE ACQUISITION CORPORATION
By: /s/ MARTHA A. BURGER
----------------------------------------
Name: Martha A. Burger
Title: Treasurer
CHESAPEAKE ENERGY LOUISIANA CORPORATION
By: /s/ MARTHA A. BURGER
----------------------------------------
Name: Martha A. Burger
Title: Treasurer
CHESAPEAKE OPERATING, INC.
By: /s/ MARTHA A. BURGER
----------------------------------------
Name: Martha A. Burger
Title: Treasurer and Sr. Vice President Human Resources
CHESAPEAKE PANHANDLE 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 ROYALTY COMPANY
By: /s/ MARTHA A. BURGER
----------------------------------------
Name: Martha A. Burger
Title: Treasurer
CHESAPEAKE-STAGHORN ACQUISITION L .P.
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 LOUISIANA, L.P.
By: CHESAPEAKE OPERATING, INC., its General Partner
By: /s/ MARTHA A. BURGER
----------------------------------------
Name: Martha A. Burger
Title: Treasurer and Sr. Vice President Human Resources
GOTHIC ENERGY CORPORATION
By: /s/ MARTHA A. BURGER
----------------------------------------
Name: Martha A. Burger
Title: Treasurer
GOTHIC PRODUCTION CORPORATION
By: /s/ MARTHA A. BURGER
----------------------------------------
Name: Martha A. Burger
Title: Treasurer
NOMAC DRILLING CORPORATION
By: /s/ MARTHA A. BURGER
----------------------------------------
Name: Martha A. Burger
Title: Treasurer
CARMEN ACQUISITION CORP.
By: /s/ MARTHA A. BURGER
----------------------------------------
Name: Martha A. Burger
Title: Treasurer
SAP ACQUISITION CORP.
By: /s/ MARTHA A. BURGER
----------------------------------------
Name: Martha A. Burger
Title: Treasurer
CHESAPEAKE MOUNTAIN FRONT CORP.
By: /s/ MARTHA A. BURGER
----------------------------------------
Name: Martha A. Burger
Title: Treasurer
CHESAPEAKE KNAN ACQUISITION CORPORATION
By: /s/ MARTHA A. BURGER
----------------------------------------
Name: Martha A. Burger
Title: Treasurer
CHESAPEAKE FOCUS CORP.
By: /s/ MARTHA A. BURGER
----------------------------------------
Name: Martha A. Burger
Title: Treasurer
CHESAPEAKE ENO ACQUISITION CORP.
By: /s/ MARTHA A. BURGER
----------------------------------------
Name: Martha A. Burger
Title: Treasurer
CHESAPEAKE BETA CORP.
By: /s/ MARTHA A. BURGER
----------------------------------------
Name: Martha A. Burger
Title: Treasurer
CHESAPEAKE DELTA CORP.
By: /s/ MARTHA A. BURGER
----------------------------------------
Name: Martha A. Burger
Title: Treasurer
CHESAPEAKE SIGMA, L.P.
By: CHESAPEAKE OPERATING, INC., its General Partner
By: /s/ MARTHA A. BURGER
----------------------------------------
Name: Martha A. Burger
Title: Treasurer and Sr. Vice President Human Resources