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EXHIBIT 2.6
SENIOR SECURED NOTES
PURCHASE AGREEMENT
THIS SENIOR SECURED NOTES PURCHASE AGREEMENT (the "Agreement"), is
entered into this 1st day of September, 2000, between CHESAPEAKE ENERGY
CORPORATION ("CEC") and LEHMAN BROTHERS INC. (the "Noteholder").
RECITALS:
A. The Noteholder owns the 1 1/8% Senior Secured Notes Due 2005 issued by
Gothic Production Corporation, an Oklahoma corporation ("Gothic"), in the
principal amount set forth in Schedule "1" attached hereto as a part hereof,
together with the accrued unpaid interest thereon in the amount set forth in
Schedule "1" (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 Collateral described in the Mortgages dated as of April 21, 1998 between
Gothic and the Trustee (the "Mortgages") and that certain Guaranty dated as of
April 21, 1998 executed by Gothic Energy Corporation ("GEC") in favor of the
Trustee (the "Guaranty" and collectively with the Notes, the Indenture, the
Mortgages and all other rights, titles and interests of the Noteholder in
connection with the Notes, the "Note Documents").
B. CEC desires to acquire and the Noteholder desires to sell the Notes
owned by the Noteholder for a purchase price consisting of CEC 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), the
Noteholder hereby agrees to sell its Notes and the beneficial interest in the
trust created by the Note Documents to CEC and CEC hereby agrees to purchase the
Notes and the Noteholder's beneficial interest in the trust created by the Note
Documents and pay the Purchase Price (as hereinafter defined) to the Noteholder.
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 CEC, CEC will transfer to the
Noteholder the number of shares of CEC Common Stock set forth in Schedule "2"
(the "Purchase Price") on the Closing Date (as hereinafter defined). The CEC
Common Stock constituting the Purchase Price is referred to herein as the
"Purchase Price Shares".
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.
C.D.T. at the offices of Weil, Gotshal & Manges LLP, 700 Louisiana, Suite 1600,
Houston, Texas 77002 on September 1, 2000 (the "Closing Date")
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unless another date, time or place is agreed to in writing by the parties
hereto. The obligations of the Noteholder to deliver its Notes to CEC via DTC
delivery on the Closing Date shall be subject to simultaneous delivery of the
Purchase Price Shares to the Noteholder.
4. Representations and Warranties of Noteholder. The Noteholder represents and
warrants to CEC 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 the Noteholder
will result in the creation of any material lien, charge or
encumbrance upon the Noteholder's Notes or the Noteholder's interest
in the trust created by the Note Documents.
4.2 Authorization of Agreement. The execution, delivery and performance
of this Agreement by the Noteholder has been duly and validly
authorized by all requisite action. 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. 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 trust created by the Note
Documents.
4.5 Investment Intent. On the Closing Date, the Noteholder is acquiring
the Purchase Price Shares 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
Purchase Price Shares 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 trust created by the Note Documents.
4.7 Note Documents. The Noteholder: (a) has good title to the Notes free
and clear of all liens, claims and encumbrances; (b) has not
previously sold, assigned, transferred, mortgaged or pledged the
Notes or the related interest in the Note Documents or the proceeds
now or hereafter due under the Notes; and (c) has not waived,
released, discounted, setoff or otherwise discharged or compromised
the payments to accrue under the Notes. The unpaid principal balance
of the Notes and the accrued unpaid interest thereon 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 the Noteholder by contract
or otherwise including, without limitation, consents by Gothic or
the Trustee.
5. Representations and Warranties of CEC. CEC represents and warrants to the
Noteholder as follows:
5.1 Organization, Good Standing, Etc. CEC is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Oklahoma. CEC has the corporate power to execute and
deliver this Agreement and to consummate the transactions
contemplated hereby.
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 148,768,103 shares of CEC Common Stock (net
of treasury shares) and 624,037 shares of preferred stock (net of
treasury shares) were issued and outstanding as of August 23, 2000.
Each share of CEC Common Stock to be issued pursuant to this
Agreement will be subject to the Registration Rights Agreement.
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
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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 is subject or of any agreement or instrument
to which CEC is a party. Neither the execution and delivery of this
Agreement nor compliance with the terms and provisions of this
Agreement by CEC will result in the creation of any material lien,
charge or encumbrance upon the CEC's assets.
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 CEC. This Agreement
has been, and the other agreements contemplated hereby when executed
and delivered will be, duly authorized, executed and delivered by
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 CEC enforceable against CEC 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. CEC has not 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 CEC threatened against or affecting
CEC that questions the validity or enforceability of this Agreement
or any other document, instrument or agreement to be executed and
delivered by CEC 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 Purchase Price Shares to be issued to the Noteholder has
been duly authorized for issuance to this Agreement and, when issued
and delivered by CEC in accordance with this Agreement, will be
validly issued, fully paid and nonassessable. The issuance of the
Purchase Price Shares under this Agreement is not subject to any
preemptive rights.
5.10 Consents. No consents to the transactions contemplated by this
Agreement are required to be obtained by CEC by contract or
otherwise except any such consents which have been duly obtained.
6. Information. Each of CEC and the Noteholder acknowledge and agree that it has
been advised that the other party has or may have information (including
information received on a privileged basis from Gothic, GEC or their respective
attorneys or financial advisors concerning Gothic or GEC 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, GEC or the Notes (including, but
not limited to, a recapitalization or other restructuring of Gothic, GEC or
their respective businesses, actions under applicable bankruptcy, liquidation,
insolvency or moratorium laws, or otherwise) (collectively, "Confidential
Information"). Recognizing the foregoing, neither CEC nor the Noteholder desires
that the other party or parties disclose any Confidential Information,
notwithstanding that such Confidential Information may be material to CEC's
decision to purchase the Notes or the Noteholder's 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. Each party to
this Agreement, for itself and on behalf of its successors and assigns (and for
and on behalf of its affiliates) hereby acknowledges and agrees that: (i) CEC
initiated and still desires to consummate the purchase of the Notes from the
Noteholder at the Purchase Price; (ii) the Noteholder still desires to
consummate the sale of the Notes to CEC at the Purchase Price; (iii) except as
expressly set forth in this Agreement, no party has made nor makes any
representation or warranty (express, implied or otherwise) with respect to
Gothic, GEC 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 Noteholder's ownership of the Notes and
the authority of the Noteholder to transfer the Notes to CEC; (iv) each party
voluntarily
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assumes all risks associated 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 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 to disclose any Confidential Information,
whether such claim arises under federal or state securities laws or otherwise.
7. Covenants. The Noteholder and CEC covenant and agree as follows:
7.1 Absolute Conveyance. The Noteholder hereby acknowledges and agrees
that: (a) the conveyance of the Notes and the related interests in
the trust created by the Note Documents to CEC pursuant to the terms
of this Agreement is an absolute conveyance of all of the
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, the
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. The Noteholder agrees to execute and deliver to CEC
and to use commercially reasonable efforts to cause the Trustee and
Gothic to execute and deliver to CEC any and all additional
assignment documents reasonably requested by CEC to fully effect the
intent of this Agreement.
7.3 Adverse Actions. The Noteholder covenants and agrees with CEC that
from the date of this Agreement until the Closing Date, the
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.
7.4 Listing Application. CEC will use its best efforts to make all
necessary and appropriate applications to cause the Purchase Price
Shares to be registered pursuant to the Registration Rights
Agreement to be listed on the New York Stock Exchange within twenty
(20) days after the Registration Statement (as hereinafter defined)
becomes effective.
8. Conditions to Obligations of CEC. The obligations of CEC 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 CEC: (a) the representations and warranties of the
Noteholder herein contained shall be
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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 Noteholder 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 the Registration Rights Agreement in
the form attached hereto as Exhibit "8.2" (the "Registration Rights
Agreement").
9. Conditions to Obligations of Noteholder. The obligations of the Noteholder 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 Noteholder hereunder: (a) the representations and
warranties of CEC 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) CEC 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.
9.2 Registration Rights Agreement. CEC shall have executed and delivered
to the Noteholder the Registration Rights Agreement.
10. Purchase Price Adjustment. CEC and the 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 Adjustment Calculation. The Purchase Price will be adjusted by
multiplying the difference between the Average Price (as hereinafter
defined) and the Original Price set forth in Schedule "2" by the
number of Purchase Price Shares (the "Adjustment Amount"). The
"Average Price" will be determined by multiplying the Daily Price
for each Selling Day times the number of Purchase Price Shares sold
on such Selling Day, adding the sums for all Selling Days during the
Averaging Period and dividing the sum by the total number of
Purchase Price Shares sold during the Averaging Period, provided,
however, that: (i) in the event a Suspension Notice (as defined in
the Registration Rights Agreement) is in effect with respect to the
Purchase Price Shares during the Averaging Period, the Averaging
Period will be extended by the number of days the Suspension Notice
is in effect; and (ii) in the event the Registration Statement is
not effective on the first anniversary of the Closing Date, the
Averaging Period will commence on the day following the date of the
first anniversary of the Closing Date. As used in this paragraph:
(a) "Daily Price" means the closing price of the CEC Common Stock as
quoted on the New York Stock Exchange on each Selling Day; (b)
"Selling Day" means a trading day on which the
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Noteholder makes sales of any Purchase Price Shares; and (c)
"Averaging Period" means the sixty (60) calendar day period
commencing with the date the registration of the Purchase Price
Shares is declared effective. Within three (3) business days after
the earlier of the date all of the Purchase Price Shares are sold or
the end of the Averaging Period, the Noteholder will furnish to CEC
a reconciliation of each sale of Purchase Price Shares. The
Noteholder and CEC acknowledge and agree that: (a) if the Original
Price exceeds the Average Price, CEC will cause the Adjustment
Amount to be paid to the Noteholder by wire transfer of immediately
available funds on the Settlement Date; and (b) if the Average Price
exceeds the Original Price, the Noteholder will pay the Adjustment
Amount to CEC by wire transfer of immediately available funds on the
Settlement Date.
10.2 Registration Statement. CEC will use its best efforts to file a
registration statement under the 33 Act covering the resale of the
Purchase Price Shares (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.
11. General Provisions. CEC and the 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 CEC and the 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, 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 CEC and
the Noteholder 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. The Noteholder and CEC 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 Noteholder and CEC each acknowledge that
neither the Noteholder nor CEC 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 the Noteholder
and CEC 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 CORPORATION, an
Oklahoma corporation
By /s/ MARCUS C. ROWLAND
---------------------------------------------
Marcus C. Rowland, Executive Vice-President
("CEC")
ADDRESS:
6100 North Western Avenue
Oklahoma City, Oklahoma 73118
Attention: Aubrey K. McClendon
Facsimile No. (405) 848-8588
LEHMAN BROTHERS INC.
By /s/ J. ROBERT CHAMBERS
---------------------------------------------
Name J. Robert Chambers
-------------------------------------------
Title Managing Director
------------------------------------------
(the "Noteholder")
ADDRESS FOR THE NOTEHOLDER:
Lehman Brothers Inc.
200 Vesey Street, 10 th Floor
New York, New York 10285
Attention: Mr. Jim Seery
Facsimile No. (212) 526-7691
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SCHEDULE "1"
<TABLE>
<CAPTION>
NOTEHOLDER PRINCIPAL BALANCE OF NOTES ACCRUED UNPAID INTEREST
---------- -------------------------- -----------------------
<S> <C> <C>
Lehman Brothers Inc. $20,149,000.00 $747,192.00
</TABLE>
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SCHEDULE "2"
PURCHASE PRICE
<TABLE>
<CAPTION>
NOTEHOLDER PURCHASE PRICE SHARES* SHARE AMOUNT
---------- ---------------------- ------------
<S> <C> <C>
Lehman Brothers Inc. 3,694,939 shares $22,306,622.00
</TABLE>
* BASED ON $6.0371 PER SHARE (THE "ORIGINAL PRICE").
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