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EXHIBIT 2.2
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., an Oklahoma corporation ("CEMI"), and OPPENHEIMER
STRATEGIC INCOME FUND, OPPENHEIMER CHAMPION INCOME FUND, OPPENHEIMER HIGH YIELD
FUND, OPPENHEIMER STRATEGIC BOND FUND/VA (collectively, the "Oppenheimer
Noteholders") and ATLAS STRATEGIC INCOME FUND (each, individually, a
"Noteholder" and collectively, the "Noteholders").
RECITALS:
A. Each Noteholder respectively 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 said 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 the respective Noteholders for a purchase price
consisting of cash and Chesapeake Energy Corporation ("CEC") common stock, par
value of $0.01 per share (the "CEC Common Stock"), in such manner and on the
terms and conditions more specifically set forth herein.
C. Each Oppenheimer Noteholder is organized as a business trust under
the laws of the Commonwealth of Massachusetts and is an investment company
registered with the Securities and Exchange Commission under the Investment
Company Act of 1940, as amended. Atlas Strategic Income Fund is a series of
Atlas Assets, Inc., a Maryland corporation.
NOW, THEREFORE, for and in consideration of 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 severally hereby agrees to sell its Notes and the 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 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
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the Notes to CEMI, CEMI will pay to each Noteholder cash via wire transfer of
immediately available funds in the amount set forth for the respective
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 date, time
or place is agreed to in writing by the parties hereto. The obligations of a
Noteholder hereunder to deliver its Notes to CEMI at the Closing shall be solely
against simultaneous delivery of the cash and CEC Common Stock constituting the
Purchase Price therefore to the window of the respective Noteholder's custodian
bank, The Bank of New York, at its offices in New York, New York, or by
settlement of the transaction at a depository trust company in each party's
respective account, for which the parties shall provide the necessary settlement
instructions prior to the Closing.
4. Representations and Warranties of Noteholder. Each Noteholder severally
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 by each Noteholder of this Agreement and 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 such Noteholder to the extent
such authorization and approval is required. This Agreement
has been, and the other agreements and instruments
contemplated hereby when executed and delivered will be, duly
executed and delivered by each 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 such Noteholder enforceable against such
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; provided, however, that each Noteholder has entered
into this Agreement solely for its own account and not jointly
with any other Noteholder; and further provided that each
Oppenheimer Noteholder is organized as a business trust under
the laws of the Commonwealth of Massachusetts of the United
States of America, and a copy of Declaration of Trust of each
Oppenheimer Noteholder is on file with the Secretary of the
Commonwealth of Massachusetts. CEMI hereby acknowledges that
this Agreement is executed on behalf of the respective Board
of Trustees of each Oppenheimer Noteholder as Trustees and not
individually and that
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the obligations of this Agreement are not binding upon any of
such Trustees or shareholders of such Noteholder individually
but are binding on the assets and property of that Noteholder.
Furthermore, CEMI acknowledges that the Declaration of Trust
of any Noteholder that is organized as a series fund provides
that the assets of a particular series of that Noteholder
shall under no circumstance be charged with liabilities
attributable to any other series of that Noteholder and that
all persons contracting with or having a claim against a
particular series of that Noteholder shall look only to the
assets of that particular series for payment of such contract
or claim.
4.3 Broker's or Finder's Fees. Such 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 each
Noteholder, there is no material claim, dispute, suit, action
or other proceeding threatened involving the Notes or that
Noteholder's interest in the Note Documents.
4.5 Investment Intent. On the Closing Date, each 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 of even date herewith by and among the parties to
this Agreement and certain additional parties (the
"Registration Rights Agreement"). Each Noteholder understands
and agrees that the certificates representing the CEC Common
Stock will have a legend imprinted thereon to the following
effect:
"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 such Noteholder's Notes or
such Noteholder's interest in the Note Documents.
4.7 Note Documents. Such Noteholder: (a) has good title to such
Noteholder's Notes free and clear of all liens, claims and
encumbrances and such Noteholder will defend title thereto
against all claims of any and all persons whomsoever; (b) has
full right and authority to transfer and convey such
Noteholder's Notes and the related interest in
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the Note Documents and to execute this Agreement; (c) has not
previously sold, assigned, transferred, mortgaged or pledged
such Noteholder's Notes or the related interest in the Note
Documents or the proceeds now or hereafter due under such
Noteholder's Notes; and (d) has not waived, released,
discounted, setoff or otherwise discharged or compromised the
payments to accrue under such Noteholder's Notes. The unpaid
principal balance of such 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 the Noteholders 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
Noteholders as follows:
5.1 Organization, Good Standing, Etc. 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.
5.3 SEC Documents. CEC has delivered or made available to the
Noteholders each registration statement, report, definitive
proxy statement or definitive information statement of CEC 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,
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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.
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 the Noteholders
has been duly authorized for issuance pursuant to this
Agreement and, when issued and delivered by CEMI in accordance
with this Agreement, will be validly issued, fully paid and
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nonassessable. The issuance of the CEC Common Stock 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 CEMI or CEC by
contract or otherwise.
6. Certain 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 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 and CEMI 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 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
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in this Agreement; and (c) after the Closing Date and the
closing of the transactions contemplated by 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, each 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 each Noteholder's Notes subject
to the terms of the Restructure Agreement and agrees to be
bound by and to fully comply with the terms of the Restructure
Agreement from and after the Closing Date.
7.4 Senior Secured Notes. In addition to the Notes, one or more of
the Noteholders is the holder of certain 11 1/8% Senior
Secured Notes issued by Gothic Production Corporation ("GPC"),
a wholly owned subsidiary of Gothic (the "GPC Notes") and each
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) the
Noteholder will not accelerate the GPC Notes upon the filing
of a bankruptcy petition 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.
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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 each Noteholder 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 a Noteholder 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.
9.2 Registration Rights Agreement. CEC shall have executed and
delivered to the Noteholders the Registration Rights
Agreement.
10. Purchase Price Adjustments. CEMI and the Noteholders 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 such 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
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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 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 the 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 the
Noteholder will be exercised by written notice from the
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.
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11. General Provisions. CEMI 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 CEMI and the
Noteholders 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.
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 each 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. 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
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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 the Noteholders 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 the Noteholders 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.
-11-
<PAGE> 12
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: Mr. Aubrey K. McClendon
Facsimile No. (405) 848-8588
OPPENHEIMER STRATEGIC INCOME FUND
By /s/ Robert G. Zack
---------------------------------------------
Name Robert G. Zack
-------------------------------------------
Title Assistant Secretary
------------------------------------------
ADDRESS:
c/o Oppenheimer Funds, Inc.
2 World Trade Center, 34th Floor
New York, New York 10048-0203
Attention: Mr. Thomas Reedy
Facsimile No. (___) ___-____
-12-
<PAGE> 13
OPPENHEIMER CHAMPION INCOME FUND
By /s/ Robert G. Zack
---------------------------------------------
Name Robert G. Zack
-------------------------------------------
Title Assistant Secretary
------------------------------------------
ADDRESS:
c/o Oppenheimer Funds, Inc.
2 World Trade Center, 34th Floor
New York, New York 10048-0203
Attention: Mr. Thomas Reedy
Facsimile No. (___) ___-____
OPPENHEIMER HIGH YIELD FUND
By /s/ Robert G. Zack
---------------------------------------------
Name Robert G. Zack
-------------------------------------------
Title Assistant Secretary
------------------------------------------
ADDRESS:
c/o Oppenheimer Funds, Inc.
2 World Trade Center, 34th Floor
New York, New York 10048-0203
Attention: Mr. Thomas Reedy
Facsimile No. (___) ___-____
-13-
<PAGE> 14
OPPENHEIMER VARIABLE ACCOUNT FUNDS
f/a/o OPPENHEIMER STRATEGIC BOND
FUND/VA
By /s/ Robert G. Zack
---------------------------------------------
Name Robert G. Zack
-------------------------------------------
Title Assistant Secretary
------------------------------------------
ADDRESS:
c/o Oppenheimer Funds, Inc.
2 World Trade Center, 34th Floor
New York, New York 10048-0203
Attention: Mr. Thomas Reedy
Facsimile No. (___) ___-____
ATLAS ASSETS, INC. f/a/o ATLAS STRATEGIC
INCOME FUND
By /s/ Steven Gray
---------------------------------------------
Name: Steven Gray
------------------------------------------
Title Vice President
------------------------------------------
ADDRESS:
c/o Oppenheimer Funds, Inc.
2 World Trade Center, 34th Floor
New York, New York 10048-0203
Attention: Mr. Thomas Reedy
Facsimile No. (___) ___-____
-14-
<PAGE> 15
SCHEDULE "1"
<TABLE>
<CAPTION>
NOTEHOLDER FACE AMOUNT OF NOTES 6/27/00 ACCRETED VALUE
---------- -------------------- ----------------------
<S> <C> <C>
Oppenheimer Strategic $18,450,000.00 $14,343,904.53
Income Fund
Oppenheimer Champion $ 8,775,000.00 $ 6,822,100.94
Income Fund
Oppenheimer Variable $ 275,000.00 $ 213,798.04
Account Funds
Oppenheimer High $14,875,000.00 $11,564,530.08
Yield Fund
Atlas Strategic $ 125,000.00 $ 97,180.93
Income Fund
</TABLE>
<PAGE> 16
SCHEDULE "2"
INITIAL ALLOCATION OF PURCHASE PRICE
<TABLE>
<CAPTION>
NOTEHOLDER CASH PORTION ORIGINAL SHARES * SHARE AMOUNT
---------- ------------- ---------------- --------------
<S> <C> <C> <C>
Oppenheimer Strategic $4,136,539.43 1,752,337 shares $10,207,365.10
Income Fund
Oppenheimer Champion $1,967,378.51 833,429 shares $ 4,854,722.43
Income Fund
Oppenheimer Variable $ 61,655.74 26,119 shares $ 152,142.30
Account Funds
Oppenheimer High $3,335,014.85 1,412,792 shares $ 8,229,515.23
Yield Fund
Atlas Strategic $ 28,025.34 11,872 shares $ 69,155.59
Income Fund
</TABLE>
* BASED ON $5.825 PER SHARE.
