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EXHIBIT 2.1
SENIOR SECURED DISCOUNT NOTES
PURCHASE AGREEMENT
THIS SENIOR SECURED DISCOUNT NOTES PURCHASE AGREEMENT (the
"Agreement"), is entered into this 23rd day of June, 2000, between CHESAPEAKE
ENERGY MARKETING, INC. ("CEMI") and APPALOOSA INVESTMENT LIMITED PARTNERSHIP I,
PALOMINO FUND LTD. and TERSK LLC (each a "Noteholder" and collectively the
"Noteholders").
RECITALS:
A. Each Noteholder owns the 14 1/8% Series B Senior Secured Discount
Notes Due 2006 issued by Gothic Energy Corporation, an Oklahoma corporation
("Gothic"), in the amounts set forth next to such Noteholder's name in Schedule
"1" attached hereto as a part hereof (the "Notes") which Notes were issued and
are held pursuant to that certain Indenture dated as of April 21, 1998 between
The Bank of New York as Trustee (the "Trustee") and Gothic as Issuer (the
"Indenture") and are secured by the Pledged Collateral described in that certain
Pledge Agreement dated as of April 21, 1998 between Gothic as Pledgor and the
Trustee as Collateral Agent (the "Pledge Agreement" and collectively with the
Notes and the Indenture, the "Note Documents").
B. CEMI desires to acquire and each Noteholder severally desires to
sell the Notes owned by such Noteholder for a purchase price consisting of cash
and Chesapeake Energy Corporation common stock, par value of $0.01 per share
(the "CEC Common Stock") in such manner and on the terms and conditions set
forth herein.
NOW, THEREFORE, for and in consideration of the recitals and the
mutual covenants and agreements set forth in this Agreement and for the purpose
of prescribing the terms and conditions for the purchase and sale of the Notes,
the parties hereby agree as follows:
1. Purchase and Sale. Subject to the terms and conditions set forth in this
Agreement and the Registration Rights Agreement (as hereinafter defined), each
Noteholder hereby agrees to sell its Notes and such Noteholder's beneficial
interest in the Note Documents to CEMI and CEMI hereby agrees to purchase each
Noteholder's Notes and such Noteholder's beneficial interest in the Note
Documents and pay the Purchase Price (as hereinafter defined) to the respective
Noteholders.
2. Purchase Price. Upon satisfaction or waiver of the conditions precedent set
forth in paragraphs 8 and 9 hereof in accordance with the terms thereof, and in
consideration for the sale of the Notes to CEMI, CEMI will pay to each
Noteholder cash via wire transfer of immediately available funds in the amount
set forth for such Noteholder in Schedule "2" attached hereto as a part hereof
and will transfer to such Noteholder the number of shares of CEC Common Stock
set forth for such Noteholder in Schedule "2" (the "Purchase Price") on the
Closing Date (as hereinafter defined).
3. Closing. Subject to the terms and provisions hereof, the closing of the
transactions provided for herein (the "Closing") shall occur at 10:00 a.m.
E.D.T. at the offices of Andrews & Kurth, L.L.P., 805 Third Avenue, New York
City, New York on June 27, 2000 (the "Closing Date") unless another
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date, time or place is agreed to in writing by the parties hereto. The
obligations of each Noteholder to deliver its Notes to CEMI at the Closing shall
be subject to simultaneous delivery of the cash and CEC Common Stock
constituting the Purchase Price payable to each Noteholder.
4. Representations and Warranties of Noteholder. Each Noteholder, severally as
to itself only, represents and warrants to CEMI as follows:
4.1 No Breach of Statute or Contract; Governmental Authorizations.
Neither the execution and delivery of this Agreement nor
compliance with the terms and provisions of this Agreement by
such Noteholder will result in the creation of any material
lien, charge or encumbrance upon such Noteholder's Notes or
such Noteholder's interest in the Note Documents.
4.2 Authorization of Agreement. The execution, delivery and
performance of this Agreement by each Noteholder has been duly
and validly authorized by all requisite action including any
partnership action by Appaloosa Management L.P. The execution,
delivery and performance by the Noteholder of all other
agreements and transactions contemplated hereby have been, or
prior to Closing will be, duly authorized and approved by all
requisite action on the part of the Noteholder. This Agreement
has been, and the other agreements and instruments
contemplated hereby when executed and delivered will be, duly
executed and delivered by the Noteholder as required and,
assuming the due authorization, execution and delivery hereof
and thereof by the other parties hereto or thereto, this
Agreement constitutes and, when executed, each of the other
agreements contemplated hereby will constitute, a valid and
binding obligation of the Noteholder enforceable against the
Noteholder in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance and similar laws affecting creditors' rights
generally from time to time and to general principles of
equity.
4.3 Broker's or Finder's Fees. The Noteholder has not incurred any
liability, contingent or otherwise, for brokers' or finders'
fees with respect to this Agreement or the transactions
contemplated hereby.
4.4 Claims or Litigation. Other than as described in the
Restructure Agreement (as hereinafter defined), there is no
material suit, action or other proceeding pending before any
court or governmental agency and, to the knowledge of the
Noteholder, there is no material claim, dispute, suit, action
or other proceeding threatened involving the Notes or the
Noteholder's interest in the Note Documents.
4.5 Investment Intent. On the Closing Date, the Noteholder is
acquiring the CEC Common Stock for investment purposes only
and not with a view to or in connection with a distribution
within the meaning of the Securities Act of 1933, as amended
(the "33 Act"), except as provided in the Registration Rights
Agreement. The Noteholder understands and agrees that the
certificates representing the CEC Common Stock will have a
legend imprinted thereon to the following effect:
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"THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR UNDER STATE SECURITIES LAWS. SUCH SHARES OF COMMON STOCK
MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID
SECURITIES ACT COVERING THE TRANSFER OR AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER THAT AN EXEMPTION FROM REGISTRATION
IS AVAILABLE OR THAT REGISTRATION UNDER SAID SECURITIES ACT IS
NOT REQUIRED."
4.6 Powers of Attorney. There are no outstanding powers of
attorney relating to or affecting the Noteholder's Notes or
the Noteholder's interest in the Note Documents.
4.7 Note Documents. The Noteholder: (a) has good title to the
Noteholder's Notes free and clear of all liens, claims and
encumbrances and the Noteholder will defend title thereto
against all claims of any and all persons whomsoever; (b) has
full right and authority to transfer and convey the
Noteholder's Notes and the related interest in the Note
Documents and to execute this Agreement; (c) has not
previously sold, assigned, transferred, mortgaged or pledged
the Noteholder's Notes or the related interest in the Note
Documents or the proceeds now or hereafter due under the
Noteholder's Notes; and (d) has not waived, released,
discounted, setoff or otherwise discharged or compromised the
payments to accrue under the Noteholder's Notes. The unpaid
principal balance of the Noteholder's Notes as of the Closing
Date is as set forth in Schedule "1" attached hereto.
4.8 Consents. No consents to the transactions contemplated by this
Agreement are required to be obtained by such Noteholder by
contract or otherwise including, without limitation, consents
by Gothic or the Trustee.
5. Representations and Warranties of CEMI. CEMI represents and warrants to the
Noteholder as follows:
5.1 Organization, Good Standing, Etc. Chesapeake Energy
Corporation ("CEC") and CEMI are corporations duly organized,
validly existing and in good standing under the laws of the
State of Oklahoma. CEMI has the corporate power to execute and
deliver this Agreement and to consummate the transactions
contemplated hereby. CEMI is a wholly owned subsidiary of CEC.
Neither CEC nor CEMI is in default under or in violation of
any provision of their respective certificate of incorporation
or bylaws.
5.2 Capital Stock of CEC. The authorized capital stock of CEC
consists of 250,000,000 shares of CEC Common Stock and
10,000,000 shares of preferred stock of which 122,721,082
shares of CEC Common Stock and 2,492,037 shares of preferred
stock were issued and outstanding as of June 16, 2000. Each
share of CEC Common Stock to be issued pursuant to this
Agreement will be subject to the Registration Rights
Agreement.
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5.3 SEC Documents. CEC has delivered or made available to the
Noteholder each registration statement, report, definitive
proxy statement or definitive information statement and all
exhibits thereto filed since December 31, 1998, each in the
form (including exhibits and any amendments thereto) filed
with the SEC (collectively, the "CEC Reports"). The CEC
Reports, which, except as otherwise disclosed, were filed with
the SEC in a timely manner, constitute all forms, reports and
documents required to be filed by CEC under the 33 Act, the
Securities Exchange Act of 1934, as amended (the "34 Act") and
the rules and regulations promulgated thereunder. As of their
respective dates, the CEC Reports (a) complied as to form in
all material respects with the applicable requirements of the
33 Act and the 34 Act and (b) did not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements made therein not misleading. Each of the balance
sheets of CEC included in or incorporated by reference into
the CEC Reports (including the related notes and schedules)
fairly presents the financial position of CEC as of its date
and each of the statements of income, retained earnings and
cash flows of CEC included in or incorporated by reference
into the CEC Reports (including any related notes and
schedules) fairly presents the results of operations, retained
earnings or cash flows, as the case may be, of CEC for the
periods set forth therein (subject, in the case of unaudited
statements, to normal year-end audit adjustments which would
not be material in amount or effect), in each case in
accordance with generally accepted accounting principles
consistently applied during the periods involved, except as
may be noted therein and except, in the case of any unaudited
statements, as permitted by Form 10-Q promulgated under the 34
Act.
5.4 No Breach of Statute or Contract; Governmental Authorizations.
Neither the execution and delivery of this Agreement nor
compliance with the terms and provisions of this Agreement
will violate any law, statute, rule or regulation of any
governmental authority, or will on the Closing Date conflict
with or result in a breach of any of the terms, conditions or
provisions of any judgment, order, injunction, decree or
ruling of any court or governmental agency, authority to which
CEC or CEMI is subject or of any agreement or instrument to
which CEC or CEMI is a party.
5.5 Authorization of Agreement. The execution, delivery and
performance of this Agreement have been duly and validly
authorized and approved by all requisite corporate action on
the part of CEMI and CEC. This Agreement has been, and the
other agreements contemplated hereby when executed and
delivered will be, duly executed and delivered by CEMI or CEC
and, assuming the due authorization, execution and delivery
hereof and thereof by the other parties hereto or thereto,
this Agreement constitutes and, when executed, each of the
other agreements contemplated hereby will constitute, a valid
and binding obligation of each of them that is a party hereto
or thereto, as the case may be, enforceable against each of
them in accordance with its terms subject to applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance and similar laws affecting creditors' rights
generally from time to time and to general principles of
equity.
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5.6 Broker's or Finder's Fees. Neither CEMI nor CEC has incurred
any liability, contingent or otherwise, for brokers' or
finders' fees with respect to this Agreement or the
transactions contemplated hereby.
5.7 Litigation. There is no litigation, proceeding or
investigation pending or, to the knowledge of CEMI threatened
against or affecting CEC or CEMI that questions the validity
or enforceability of this Agreement or any other document,
instrument or agreement to be executed and delivered by either
CEC or CEMI in connection with the transactions contemplated
hereby.
5.8 Vote Required. No vote of the holders of any class or series
of CEC capital stock or other voting securities is necessary
to approve this Agreement or the transactions contemplated
hereby.
5.9 Shares. The CEC Common Stock to be issued to each Noteholder
has been duly authorized for issuance to this Agreement and,
when issued and delivered by CEMI in accordance with this
Agreement, will be validly issued, fully paid and
nonassessable. The issuance of the CEC Common Stock under this
Agreement is no subject to any preemptive rights.
5.10 Consents. No consents to the transactions contemplated by this
Agreement are required to be obtained by CEMI or CEC by
contract or otherwise.
6. Information. CEMI and each Noteholder acknowledge and agree that it has been
advised that the other party has or may have confidential information (including
information received on a privileged basis from Gothic, GPC (as hereinafter
defined) or their respective attorneys or financial advisors concerning Gothic
or GPC and/or their respective business, properties, condition (financial or
otherwise), results of operations, plans or prospects, that is non-public and
that may be considered material, including, without limitation, information
relating to various alternatives, financial or otherwise, with respect to
Gothic, GPC or the Notes (including, but not limited to, a recapitalization or
other restructuring of Gothic, GPC or their respective businesses, actions under
applicable bankruptcy, liquidation, insolvency or moratorium laws, or otherwise)
(collectively, "Confidential Information"). Recognizing the foregoing, neither
CEMI nor any Noteholder desires that the other party or parties disclose any
Confidential Information, notwithstanding that such Confidential Information may
be material to CEMI's decision to purchase the Notes or the Noteholders'
decision to sell the Notes and each party hereto specifically requests that each
other party hereto not disclose any Confidential Information to any other party
hereto or CEC. Each party to this Agreement, for itself and on behalf of its
successors and assigns (and in the case of CEMI, for and on behalf of its
affiliates including, without limitation, CEC) hereby acknowledges and agrees
that: (i) CEMI and its affiliates initiated and still desires to consummate the
purchase of the Notes from each Noteholder at the Purchase Price; (ii) each
Noteholder still desires to consummate the sale of the Notes to CEMI at the
Purchase Price; (iii) no party has made nor makes any representation or warranty
(express, implied or otherwise) with respect to Gothic, GPC or their respective
businesses, properties, condition (financial or otherwise), results of
operations, plans or prospects or with respect to the Notes, other than with
respect to the Noteholders ownership of the Notes and the authority of the
Noteholders to transfer the Notes to CEMI; (iv)a each party voluntarily assumes
all risks associated
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with the purchase and sale of the Notes and is not relying on any disclosure or
non-disclosure made or not made by any other party or CEC in connection
therewith; and (v) such party has no claims, and if any such claim may exist,
hereby irrevocably waives and releases, and covenants and agrees not to assert,
any claim against any other party, CEC or any of their respective directors,
officers, partners, stockholders or affiliates in connection with or arising out
of the purchase and sale of the Notes pursuant hereto or any failure by any
party or CEC to disclose any Confidential Information, whether such claim arises
under federal or state securities laws or otherwise.
7. Covenants. Each Noteholder, severally as to itself only, and CEMI covenant
and agree as follows:
7.1 Absolute Conveyance. Each Noteholder hereby acknowledges and
agrees that: (a) the conveyance of the Notes and the related
interests in the Note Documents to CEMI pursuant to the terms
of this Agreement is an absolute conveyance of all of such
Noteholder's right, title and interest in and to the Notes and
the Note Documents, in fact as well as in form, and neither
this Agreement nor any other conveyance document is intended
to be a mortgage, trust conveyance, deed of trust or security
instrument of any kind; (b) the consideration for such
conveyance is exactly as recited in this Agreement; and (c)
after the Closing Date and Closing of the transactions
contemplated in this Agreement, such Noteholder will have no
further interest (including rights of redemption) or claims
in, to or against the Notes or the Note Documents or to the
proceeds or profits that might be derived therefrom.
7.2 Other Documents. Each Noteholder agrees to execute and deliver
to CEMI and to use commercially reasonable efforts to cause
the Trustee and Gothic to execute and deliver to CEMI any and
all additional assignment documents reasonably requested by
CEMI to fully effect the intent of this Agreement.
7.3 Adverse Actions. Each Noteholder covenants and agrees with
CEMI that from the date of this Agreement until the Closing
Date, such Noteholder will not enter into any contract,
agreement, commitment or arrangement with respect to or
involving the Notes or the Note Documents or take, participate
in or consent to any action which might adversely affect the
validity, enforceability or value of the Notes or the Note
Documents. Each Noteholder and CEMI acknowledge that certain
Agreement In Respect of Restructuring of Gothic Energy
Corporation 14 1/8% Series B Senior Secured Discount Notes
among Gothic, such Noteholder and others dated on or about
June 5, 2000 (the "Restructure Agreement") and each Noteholder
hereby (a) represents that such Noteholder has fully complied
with the terms of the Restructure Agreement through the date
hereof and (b) agrees to fully comply with the terms of the
Restructure Agreement through the Closing Date. CEMI hereby
agrees that it is purchasing the Notes subject to the
Restructure Agreement and agrees to fully comply with and be
bound by the terms of the Restructure Agreement from and after
the Closing Date.
7.4 Senior Secured Notes. In addition to the Notes, each
Noteholder is the holder of certain 11 1/8% Senior Secured
Notes issued by Gothic Production Corporation
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("GPC"), a wholly owned subsidiary of Gothic (the "GPC Notes")
and such Noteholder hereby agrees that with respect to any GPC
Notes now owned or hereafter acquired by such Noteholder or
any affiliate of such Noteholder: (a) such Noteholder will
consent to and will not take any action adverse to the terms
and conditions of the Restructure Agreement; and (b) such
Noteholder will not accelerate any GPC Notes upon the filing
of bankruptcy by Gothic.
7.5 Other Noteholders. On or before July 31, 2000, CEMI agrees to
offer to purchase the 14 1/8% Series B Senior Secured Discount
Notes Due 2006 owned by John Hancock Funds and Ingalls &
Snyder, L.L.C. on substantially the same terms and conditions
as set forth in this Agreement.
7.6 Listing Application. CEMI will use its best efforts to cause
CEC to make all necessary and appropriate applications to
cause the CEC Common Stock to be registered pursuant to the
Registration Rights Agreement to be listed on the New York
Stock Exchange.
8. Conditions to Obligations of CEMI. The obligations of CEMI to effect the
transactions contemplated by this Agreement will be subject to the following
conditions:
8.1 Representations and Warranties. Except to the extent waived in
writing by CEMI: (a) the representations and warranties of the
Noteholders herein contained shall be substantially true at
the Closing with the same effect as though made at such time
(except if a representation and warranty speaks as of a
different date, in which case it shall be substantially true
as of such date); and (b) the Noteholders shall have performed
all material obligations and complied with all material
covenants required by this Agreement to be performed or
complied with at or prior to the Closing.
8.2 Other Agreements. As of the Closing Date the Noteholders shall
have executed and delivered to CEC a Registration Rights
Agreement in the form attached hereto as Schedule "8.2" (the
"Registration Rights Agreement").
9. Conditions to Obligations of Noteholder. The obligations of the Noteholders
to effect the transactions contemplated by this Agreement shall be subject to
the following conditions:
9.1 Representations and Warranties. Except to the extent waived in
writing by the Noteholders hereunder: (a) the representations
and warranties of CEMI herein contained and the
representations and warranties of CEC in the Registration
Rights Agreement shall be substantially true at the Closing
with the same effect as though made at such time (except if a
representation and warranty speaks as of a different date, in
which case it shall be substantially true as of such date);
and (b) CEMI shall have performed all material obligations and
complied with all material covenants required by this
Agreement to be performed or complied with by it at or prior
to the Closing.
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9.2 Registration Rights Agreement. CEC shall have executed and
delivered to the Noteholders the Registration Rights
Agreement.
10. Purchase Price Adjustments. CEMI and each Noteholder hereby agree that on
the date ten (10) days after the expiration of the Averaging Period as defined
in paragraph 10.1 (the "Settlement Date"), the Purchase Price will be adjusted
based on the following terms and conditions:
10.1 Share Adjustment. Notwithstanding the number of shares of CEC
Common Stock set forth in Schedule "2" as part of the Purchase
Price payable to a Noteholder (the "Original Shares"), the
number of shares of CEC Common Stock to be received by each
Noteholder will be the number of shares of CEC Common Stock
determined by dividing the dollar value of the CEC Common
Stock portion of the Purchase Price set forth in Schedule "2"
attached hereto for each Noteholder (the "Share Amount") by
the Average Price (the "Purchase Price Shares"). The "Average
Price" will be determined by adding the closing price of the
CEC Common Stock as quoted on the New York Stock Exchange as
of the close of business on each trading day during the thirty
(30) calendar days following the date the registration of the
Original Shares is effective (the "Averaging Period") and
dividing the sum by the number of trading days during the
Averaging Period. The number of Purchase Price Shares will be
rounded up or down to the nearest whole number and no
fractional shares will be issued. Each Noteholder and CEMI
acknowledge and agree that: (a) if the number of Purchase
Price Shares exceeds the number of Original Shares, CEMI will
cause the difference to be paid to the Noteholder in either
cash or additional shares of CEC Common Stock covered by the
Registration Statement (as hereinafter defined) at the sole
option of CEMI; and (b) if the number of Original Shares
exceeds the number of Purchase Price Shares, the Noteholder
will pay the difference to CEMI in either cash or Original
Shares at the sole option of the Noteholder.
10.2 Registration and Interest. CEMI will use its best efforts to
cause CEC to file a registration statement under the 33 Act
covering the resale of the Original Shares and additional
shares of CEC Common Stock to cover adjustments under
paragraph 10.1 hereof (the "Registration Statement") within
forty-five (45) days after the Closing Date and will use its
best efforts to cause the Registration Statement to be
declared effective by the Securities and Exchange Commission
within one hundred five (105) days after the Closing Date (the
"Initial Period"). From the Closing Date through the earlier
of the date the Registration Statement is declared effective
or the end of the Initial Period the Share Amount will bear
interest for the actual number of days elapsed at the per
annum rate of fourteen and one-eighth percent (14 1/8%). If
the Registration Statement has not been declared effective at
or prior to the end of the Initial Period, the Share Amount
will bear interest from the end of the Initial Period until
the earlier of the date the Registration Statement is declared
effective or the end of one hundred eighty (180) days after
the Closing Date (the "Secondary Period") for the actual
number of days elapsed at the per annum rate of eighteen
percent (18%). If the Registration Statement has not been
declared effective at or prior to the end of the Secondary
Period, the Share Amount will bear interest from the end of
the Secondary Period until the date the Registration Statement
is declared effective for
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the actual number of days elapsed at the per annum rate of
twenty percent (20%). Interest on the Share Amount will be
compounded daily. The interest on the Share Amount will be
treated as an adjustment to the Purchase Price, will be due
and payable in full to each Noteholder on the Settlement Date
and may be paid, at CEMI's election, in cash or additional
shares of CEC Common Stock covered by the Registration
Statement.
10.3 Put Right. Notwithstanding anything to the contrary set forth
in paragraph 10.2 of this Agreement, in the event the
Registration Statement has not been declared effective on or
before the first anniversary of the Closing Date, each
Noteholder will have the right to put the Original Shares to
CEMI at a put price equal to the Share Amount plus all accrued
unpaid interest thereon pursuant to paragraph 10.2 to the date
the put is satisfied (the "Put Price"). The put right of each
Noteholder will be exercised by written notice from such
Noteholder to CEMI within thirty (30) days after the first
anniversary of the Closing Date and the put will be
consummated within seven (7) days after receipt of such notice
of exercise by the exercising Noteholder delivering to CEMI
the Original Shares duly assigned and CEMI paying the Put
Price to such Noteholder by wire transfer of immediately
available funds.
11. General Provisions. CEMI and each Noteholder further agree as follows:
11.1 Amendments. Subject to applicable law, this Agreement may be
amended only by a written instrument executed by each of the
parties hereto at any time prior to the Closing.
11.2 Survival of Covenants, Representations and Warranties. The
respective representations and warranties of CEMI and each
Noteholder contained in this Agreement shall be deemed made as
of the Closing and all covenants and undertakings required to
be performed will survive the Closing.
11.3 Governing Law. This Agreement and the legal relations between
the parties shall be governed by and construed in accordance
with the laws of the State of New York.
11.4 Notices. All notices, requests, demands or other
communications required or permitted by this Agreement shall
be in writing and effective when received, and delivery shall
be made personally or by registered or certified mail, return
receipt requested, postage prepaid, or overnight courier or
confirmed facsimile transmission, addressed to the parties as
set forth in their respective signature blocks to this
Agreement.
11.5 Fees and Expenses. All fees and expenses, including attorneys'
fees, incurred in connection with this Agreement and the
transactions contemplated hereby shall be borne by the
respective party who has incurred such fee or expense,
provided, however, CEMI and/or CEC (to the extent provided in
the Registration Rights Agreement) will bear all expenses
incurred in connection with the transfer of the Notes and the
registration of the Purchase Price Shares.
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11.6 Headings. The descriptive headings of the sections and
paragraphs of this Agreement are inserted for convenience only
and do not constitute a part of this Agreement.
11.7 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the
same agreement and shall become effective when one or more
counterparts have been signed by each of the parties hereto
and delivered to each of the other parties hereto.
11.8 Entire Agreement. This Agreement and the other agreements
contemplated hereby constitute the entire agreement among CEMI
and the Noteholders with respect to the subject matter hereof.
Unless this Agreement is specifically amended in writing, it
supersedes all other agreements and understandings among the
parties with respect to the subject matter hereof and thereof.
11.9 Publicity. Each Noteholder and CEMI shall, subject to their
respective legal obligations (including requirements of the
New York Stock Exchange and other similar regulatory bodies),
consult with each other, and use reasonable efforts to agree
upon the text of any press release before issuing any such
press release or otherwise making public statements with
respect to the transactions contemplated hereby.
11.10 No Third Party Beneficiaries. Nothing in this Agreement,
whether express or implied, is intended to confer any rights
or remedies under or by reason of this Agreement on any person
other than the parties to this Agreement, nor is anything in
this Agreement intended to relieve or discharge the obligation
or liability of any third persons to any party to this
Agreement, nor shall any provision give any third persons any
rights of subrogation or action over or against any party to
this Agreement.
11.11 Specific Performance. The Noteholders and CEMI each
acknowledge that neither such Noteholder nor CEMI would have
an adequate remedy at law for money damages in the event this
Agreement was not performed in accordance with its terms, and
therefore, agree that such Noteholder and CEMI each shall be
entitled to specific enforcement of the terms hereof in
addition to any other remedy to which it may be entitled, at
law or in equity.
11.12 Partial Illegality or Unenforceability. Wherever possible,
each provision hereof shall be interpreted in such manner as
to be effective under applicable law, but in case any one or
more of the provisions contained herein shall, for any reason,
be held to be illegal or unenforceable in any respect, such
illegality or unenforceability shall not affect any other
provision of this Agreement, and this Agreement shall be
construed as if such illegal or unenforceable provision or
provisions had never been contained herein unless the deletion
of such provision or provisions would result in such a
material change as to cause completion of the transactions
contemplated hereby to be unreasonable.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
CHESAPEAKE ENERGY MARKETING, INC.,
an Oklahoma corporation
By /s/ Aubrey K. McClendon
---------------------------
Aubrey K. McClendon,
Chief Executive Officer
("CEMI")
ADDRESS:
6100 North Western Avenue
Oklahoma City, Oklahoma 73118
Attention: Aubrey K. McClendon
Facsimile No. (405) 848-8588
APPALOOSA INVESTMENT LIMITED
PARTNERSHIP I
By: Appaloosa Management L.P.,
Its General Partner
By: Appaloosa Partners Inc.,
Its General Partner
By /s/ Ronald Goldstein
--------------------------
Ronald Goldstein,
Chief Financial Officer
PALOMINO FUND LTD.
By: Appaloosa Management L.P.,
Its General Partner
By: Appaloosa Partners Inc.,
Its General Partner
By /s/ Ronald Goldstein
--------------------------
Ronald Goldstein,
Chief Financial Officer
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TERSK LLC
By: Appaloosa Management L.P.,
Its Managing Member
By: Appaloosa Partners Inc.,
Its General Partner
By /s/ Ronald Goldstein
--------------------------
Ronald Goldstein,
Chief Financial Officer
(the "Noteholders")
ADDRESS FOR EACH NOTEHOLDER:
26 Main Street
Chatham, New Jersey 07928
Attention: Ronald Goldstein
Facsimile No. (973) 701-7309
- 12 -
<PAGE> 13
SCHEDULE "1"
<TABLE>
<CAPTION>
NOTEHOLDER FACE AMOUNT OF NOTES 6/27/00 ACCRETED VALUE
---------- -------------------- ----------------------
<S> <C> <C>
APPALOOSA $20,436,000.00 $15,887,915.07
INVESTMENT LIMITED
PARTNERSHIP I
PALOMINO FUND LTD. $22,876,000.00 $17,784,886.72
TERSK LLC $ 3,393,000.00 $ 2,637,879.03
</TABLE>
<PAGE> 14
SCHEDULE "2"
INITIAL ALLOCATION OF PURCHASE PRICE
<TABLE>
<CAPTION>
NOTEHOLDER CASH PORTION ORIGINAL SHARES * SHARE AMOUNT
---------- ------------- ---------------- --------------
<S> <C> <C> <C>
Appaloosa Investment $4,581,805.95 1,940,963 shares $11,306,109.12
Limited Partnership I
Palomino Fund Ltd. $5,128,860.49 2,172,708 shares $12,656,026.23
Tersk LLC $ 760,719.69 322,259 shares $ 1,877,159.34
</TABLE>
* BASED ON $5.825 PER SHARE.
