EXHIBIT 4.4.2
FIRST AMENDMENT TO CREDIT
AGREEMENT BY AND AMONG CONTINENTAL RESOURCES, INC.
CONTINENTAL GAS, INC. AND MIDFIRST BANK AND THE
INSTITUTIONS NAMED IN THE CREDIT AGREEMENT AS BANKS
AND MIDFIRST BANK, AS AGENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT ("Amendment"), made and entered
into this 1st day of August, 2000, by and among CONTINENTAL RESOURCES,
INC., an Oklahoma corporation (individually, "Resources") and CONTINENTAL GAS,
INC., an Oklahoma corporation (individually, "Gas") (Resources and Gas are
hereinafter collectively referred to as "Borrowers" and individually as a
"Borrower"), and MIDFIRST BANK, a federally chartered savings association
("MidFirst"), and each of the financial institutions which is a party hereto
(as evidenced by the signature pages to this Amendment) or which may from time
to time become a party hereto pursuant to the provisions of Section 28 of the
Credit Agreement or any successor or assignee thereof (hereinafter
collectively referred to as "Banks", and individually a "Bank") and MidFirst,
as Agent (the "Agent").
W I T N E S S E T H:
WHEREAS, on April 21, 2000 Borrowers, Banks and Agent entered into that
certain Credit Agreement (the "Agreement") whereby Banks provided Borrower
with a revolving line of credit in an amount which could not exceed
$25,000,000.00 as evidenced by the Notes subject to a Borrowing Base.
WHEREAS, the obligations described in the Agreement are secured by, among
other things not specifically set forth herein, certain Oil and Gas Properties
and other Collateral; and
WHEREAS, all capitalized terms not otherwise defined herein shall have those
meanings assigned to such terms in the Agreement;
WHEREAS, Borrower, Banks and Agent desire to amend the Agreement for the
first time in order to, among other things not specifically set forth in this
recital, (i) add Local Oklahoma Bank, N.A. as a "Bank", and (ii) certain other
modifications as set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower, Banks and Agent
hereby agree to amend the agreement as follows:
A. CHANGES TO THE AGREEMENT
1. The definition of "Delta Trust" set forth at Section 1 of the Agreement,
Definitions, is hereby deleted from the Agreement in its entirety.
2. The definition of "Interest Payment Date" set forth at Section 1 of the
Agreement, Definitions, is hereby amended and restated in its entirety as
follows:
"Interest Payment Date" shall mean the last day of each calendar month.
3. The definition of "Revolving Commitment" set forth at Section 1 of the
Agreement, Definitions, is hereby amended and restated in its entirety in
order to correct the reference to "Bank's Revolving Commitment Percentage" as
follows:
"Revolving Commitment" shall mean (A) for all Banks, the lesser of
(i)$25,000,000 or (ii) the Borrowing Base in effect from time to time, in
each case as reduced from time to time pursuant to Sections 2 and 7 hereof,
and (B) as to any Bank, its obligation to make Advances hereunder on the
Revolving Loan and purchase participations in Letters of Credit issued
hereunder by the Agent in amounts not exceeding, in the aggregate, an amount
equal to such Bank's Revolving Commitment Percentage times the total Revolving
Commitment as of any date. The Revolving Commitment of each Bank hereunder
shall be adjusted from time to time to reflect assignments made by such Bank
pursuant to Section 28 hereof. Each reduction in the Revolving Commitment
shall result in a Pro Rata reduction in each Bank's Revolving Commitment.
4. The definition of "Unused Fee Rate" set forth at Section 1 of the
Agreement, Definitions, is hereby amended and restated in its entirety in
order to correct the tiers set forth therein as follows:
"Unused Fee Rate" shall mean the percentage used to calculate the Unused
Commitment Fee (as such term is defined in Section 8(a) hereof), which
percentage shall be:
(i) twenty five (25.00) basis points per annum whenever the Total
Outstandings are greater than or equal to seventy-five percent
(75%) of the Borrowing Base in effect at the time in question;
(ii) twenty-two and 50/100ths (22.5) basis points per annum whenever
Total Outstandings are greater than or equal to fifty percent (50%)
but less than seventy-five percent (75%) of the Borrowing Base in
effect at the time in question;
(iii) twenty (20) basis points per annum whenever Total Outstandings are
greater than or equal to twenty-five percent (25%) but less than
fifty percent (50%) of the Borrowing Base in effect at the time in
question; or
(iv) eighteen and 75/100ths (18.75) basis points per annum whenever
Total Outstandings are less than twenty-five percent (2.5%) of the
Borrowing Base in effect at the time in question.
5. Section 2 of the Agreement, Commitments of the Banks, at Subsection
(c), Letters of Credit, is hereby amended in order to restate the third
sentence of said Subsection (c) in its entirety as follows:
Each Letter of Credit issued for the account of Borrowers hereunder
shall (i) be in favor of such beneficiaries as specifically requested by
Borrowers, (ii) have an expiration date not exceeding one year from the
Revolving Maturity Date, and (iii) contain such other terms and
provisions as may be reasonable required by Bank.
6. Section 2 of the Agreement, Commitments of the Banks, at Subsection
(f), Revolving Commitments, is hereby amended and restate in its entirety as
follows:
(f) Commitment Reductions. The Borrowing Base and the Revolving
Commitment shall be reduced from time to time as a result of an Unscheduled
Redetermination upon the sale of Oil and Gas Properties by an amount
determined by Banks pursuant to Section 7(b) hereof (the "Monthly
Commitment Reduction). If, as a result of any such reduction in the
Borrowing Base, the Total Outstandings ever exceed the Borrowing Base then
in effect, the Borrowers shall make the mandatory prepayment of principal
required pursuant to Section 9(b) hereof. Initially, the Monthly
Commitment Reduction will be zero ($0.00) and will remain at such amount
until redetermined in a subsequent determination of the Borrowing Base
pursuant to Section 7(b) below. The Monthly Commitment Reduction will be
redetermined in conjunction with each subsequent determination of the
Borrowing Base pursuant to Section 7(b).
7. The first sentence of Subsection "(b)", Subsequent Determinations of
Borrowing Base, of Section 7 of the Agreement, Borrowing Base, is hereby
amended and restated in its entirety as follows:
Subsequent determinations of the Borrowing Base and Monthly Commitment
Reduction shall be made by the Banks at lease semi-annually based on
engineering reports effectively dated January 1 and July 1 of each year
beginning July 1, 2000 or as otherwise required to accommodate Unscheduled
Redeterminations.
8. The fifth (5th) sentence from the end of SubSection (b), Subsequent
Determinations of Borrowing Base, of Section 7 of the Agreement, Borrowing
Base, is hereby amended and restated in its entirety as follows:
If at any time any of the Oil and Gas Properties are sold, the
Borrowing Base then in effect may be reduced as a result of an Unscheduled
Redetermination.
9. The phrase "sales made with the consent of Majority Banks which are
made pursuant to, and in full compliance with, Section 12(r) hereof" is hereby
deleted from part "(B)" of sub-paragraph "(ii)" of Subsection "(a)", Negative
Pledge, of Section 13, Negative Covenants, and the phrase "INTENTIONALLY
DELETED" is inserted in its place.
10. All references to the amount of "5,000,000" in Section 28, Assignments
and Participations, at Subsection "(a)" shall be deleted and replaced with the
amount of "2,500,000".
11. Item "(3)" contained within Section 28, Assignments and
Participations, of the Agreements at Subsection "(a)" shall be amended and
restated in its entirety as follows:
(3) each such sale, assignment or transfer shall be of a Pro Rata
portion of such Bank's Revolving Commitment,
B. REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants to Banks that:
1. Each Borrower is a corporation, duly organized, legally existing, and
in good standing under the laws of the State of Oklahoma, and is duly
qualified as a foreign corporation and in good standing in all other states
wherein the nature of its business or its assets make such qualification
necessary.
2. Each Borrower's execution and deliver of this Amendment and
performance of its obligations hereunder: (a) are and will be within its
corporate powers; (b) are duly authorized by its board of directors; (c) are
not and will not be in contravention of any law, statute, rule or regulation,
the terms of its articles or certificates of incorporation and bylaws, nor
of any preferred stock provision, indenture, agreement or undertaking to which
Corporation or any of its properties are bound; (d) do not require any consent
or approval (including governmental) which has not been given; and (e) will
not result in the imposition of Liens, charges or encumbrances on any of its
properties or assets, except those in favor of Banks hereunder.
3. This Amendment, when duly executed and delivered, will constitute the
legal, valid and binding obligations of each Borrower, enforceable in
accordance with its terms.
4. All financial statements, balance sheets, income statements and other
financial data which have been or are hereafter furnished to Banks by each
Borrower to induce Banks to make the loans hereunder due, and as to subsequent
financial statements will, fairly represent each Borrower's financial
condition as of the dates for which the same are furnished. All such
financial statements, reports, papers and other data furnished to Banks are
and will be, when furnished: Prepared in accordance with generally accepted
accounting principles consistently applied: accurate and correct in all
material respects; and complete insofar as completeness may be necessary to
give Banks a true and accurate knowledge of the subject matter. Since the
date of the last such financial statements, no material adverse change has
occurred in the operations or condition, financial or otherwise and other
financial data provided to Banks; of either Borrower, nor, to the best of
their knowledge, has either Borrower incurred, any material liabilities or
made any material investment or guarantees, direct or contingent, in any
single case or in the aggregate, which has not been disclosed to Banks.
5. The Borrower, collectively, is the sole and lawful owner of the
Collateral, pledged, mortgaged or assigned by it, and each Borrower has, and
as to after acquired property or New Properties will have, good right to cause
the Collateral to be hypothecated to Banks as security for the Obligations.
6. All of each Borrower's other representations and warranties set forth
in the Agreement are true and correct on and as of the date hereof with the
same effect as though made and repeated by Borrower as of the date hereof.
C. CONDITIONS
The Banks' obligations under the Agreement, as hereby amended, are subject
to the following conditions:
1. Then Banks and each Borrower shall have executed and delivered this
Amendment.
2. Each Borrower's representations and warranties set forth in Section B
hereof shall be true and correct on and as of the date hereof, and the date of
any subsequent advance with the same effect as though such representation and
warranty had been on and as of such date.
3. Borrower shall have executed any and all mortgages, deeds of trust
and/or any other security documents deemed necessary by Agent in its sole
discretion.
4. Each Borrower shall have satisfied all conditions set forth in Section
11 of the Agreement.
5. As of the date hereof, and the date of any subsequent Advance, no Event
of Default nor any event which, with the giving of notice or lapse of time,
would constitute an Event of Default shall have occurred and be continuing.
D. OTHER COVENANTS AND MISCELLANEOUS TERMS
1. Except as expressly amended and supplemented hereby, the Agreement shall
remain unchanged and in full force and effect, and the same is hereby ratified
and extended.
2. The obligations of Borrowers to Banks, including but not limited to the
indebtedness evidences by the Note executed in conjunction with the Agreement,
shall continue to be secured by the Collateral, without interruption or
impairment of any kind.
3. The Borrowers hereby agree to pay all reasonable attorney fees and legal
expenses incurred by Agent in preparation, execution and implementation of this
Amendment and any mortgages, deeds of trust, security agreements, pledge
agreements or any amendments thereto.
4. This Amendment shall be construed in accordance with and governed by the
laws of the State of Oklahoma, and shall be binding on and inure to the benefit
of the Borrowers and Banks, and their respective successors and assigns. All
obligations of the Borrowers under the Agreement and all rights of Banks and any
other holder of the Notes, whether expressed herein or in any Note, shall be in
addition to and not in limitation of those provided by applicable law.
Borrowers irrevocably agree that, subject to Banks' sole election, all suits or
proceedings arising from or related to the Agreement, as amended, or the Notes
may be litigated in courts (whether State or Federal) sitting in Oklahoma City,
Oklahoma, and the Borrower hereby irrevocably waives any objection to such
jurisdiction and venue.
5. This Amendment may be executed in as many counterparts as are deemed
necessary or convenient, and it shall not be necessary for the signature of more
than any one party to appear on any single counterpart. Each counterpart shall
be deemed an original, but all shall be construed together as one and the same
instrument. The failure of any party to sign shall not affect or limit the
liability of any party executing any such counterpart.
BORROWER:
CONTINENTAL RESOURCES, INC.,
an Oklahoma corporation
HAROLD HAMM
By: Harold Hamm
Title: President
CONTINENTAL GAS, INC.,
an Oklahoma corporation
RANDY MOEDER
By: Randy Moeder
Title: President
BANKS:
MIDFIRST BANK
W. THOMAS PORTMAN
By: W. Thomas Portman
Title: Vice President
BANCFIRST
E. G. ALEXANDER
By: E. G. Alexander
Title: Senior Vice President
LOCAL OKLAHOMA BANK, N.A.
JOHN K. SLAY, JR.
By: John K. Slay, Jr.
Title: Senior Vice President
AGENT:
MIDFIRST BANK
W. THOMAS PORTMAN
By: W. Thomas Portman
Title: Vice President
