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EXHIBIT 2.5
SENIOR SECURED DISCOUNT NOTES
PURCHASE AGREEMENT
THIS SENIOR SECURED DISCOUNT NOTES PURCHASE AGREEMENT (the
"Agreement"), is entered into this 29th day of August, 2000, between CHESAPEAKE
ENERGY MARKETING, INC. ("CEMI") and BNP Paribas (the "Noteholder").
R E C I T A L S :
A. The 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 the Noteholder severally desires to sell the
Notes owned by the 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), the
Noteholder hereby agrees to sell its Notes and the Noteholder's beneficial
interest in the Note Documents to CEMI and CEMI hereby agrees to purchase the
Noteholder's Notes and the Noteholder's beneficial interest in 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 CEMI, CEMI will pay to the Noteholder
cash via wire transfer of immediately available funds in the amount set forth
for the Noteholder in Schedule "2" attached hereto as a part hereof and will
transfer to the Noteholder the number of shares of CEC Common Stock set forth
for the 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 Kramer, Levin, Naftalis & Frankel LLP, 919 Third
Avenue, New York City, New York on August 31, 2000 (the "Closing Date") 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 CEMI at the Closing shall
be subject to
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simultaneous delivery of the cash and CEC Common Stock constituting the Purchase
Price payable to the Noteholder.
4. Representations and Warranties of Noteholder. The Noteholder 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 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 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. No Noteholder has 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 that certain
Agreement In Respect of Restructuring of Gothic Energy
Corporation 14 1/8% Series B Senior Secured Discount Notes among
Gothic and other holders of Gothic's 14 1/8% Series B Senior
Secured Discount Notes dated on or about June 5, 2000 (the
"Restructure Agreement"), 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
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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 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 the 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 148,768,103 shares of CEC
Common Stock (net of treasury shares) and 624,037
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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
Noteholders 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
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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 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 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. Information. CEMI and the 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 the 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 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 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 the Noteholder at the Purchase Price; (ii) the
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,
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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 Noteholder's ownership of the Notes and the authority of the
Noteholder to transfer the Notes to CEMI; (iv) 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. The Noteholder 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 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
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. The Noteholder covenants and agrees with CEMI
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 Senior Secured Notes. In addition to the Notes, the Noteholder
may hold certain 11 1/8% Senior Secured Notes issued by Gothic
Production Corporation ("GPC"), a wholly owned subsidiary of
Gothic (the "GPC Notes") and the Noteholder hereby agrees that
with respect to any GPC Notes now owned or hereafter acquired by
the Noteholder or any affiliate of the Noteholder will not
accelerate any GPC Notes upon the filing of bankruptcy by Gothic.
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7.5 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
Noteholder 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 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 Noteholder shall
have executed and delivered to CEC an Addendum to the
Registration Rights Agreement in the form attached hereto as
Schedule "8.2" (the "Registration Rights Agreement") whereby the
Noteholder becomes a party to 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 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 Noteholder the Registration Rights Agreement.
10. Purchase Price Adjustments. CEMI 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 Share Adjustment. Notwithstanding the number of shares of CEC
Common Stock set forth in Schedule "2" as part of the Purchase
Price payable to the Noteholder (the "Original Shares"), the
number of shares of CEC Common Stock to be received by the
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
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set forth in Schedule "2" attached hereto for the 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. The 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 cash; 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 cause CEC to file a
registration statement under the 33 Act covering the resale of
the Original Shares (the "Registration Statement") within ten
(10) days after the Closing Date (the "Original Date") and will
use its best efforts to cause the Registration Statement to be
declared effective by the Securities and Exchange Commission
within forty-five (45) days after the Closing Date. From the
Closing Date through October 10, 2000 (the "Initial Period") or
the date the Registration Statement is declared effective, which
ever is earlier, 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 December 24, 2000
(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 and if due and owing by CEMI after calculation of the
Purchase Price adjustment under paragraph 10.1 hereof, will be
due and payable in full to the Noteholder on the Settlement Date
and will be paid by CEMI by wire transfer of immediately
available funds.
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 June 26,
2001, the 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 June 26, 2001,
and the put will
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be consummated within seven (7) days after receipt of such notice
of exercise by the Noteholder delivering to CEMI the Original
Shares duly assigned and CEMI paying the Put Price to the
Noteholder by wire transfer of immediately available funds.
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
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.
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 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.
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11.9 Publicity. The 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 Noteholder and CEMI each acknowledge
that neither the 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 the 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.
11.13 Mutual Indemnity. CEMI on one hand and the Noteholder
severally on the other hand (each an "Indemnifying Party"),
agrees to pay, defend, indemnify, reimburse and hold harmless
the other and its directors, officers, agents, and employees
(an "Indemnified Party") for, from and against any loss,
damage, claim, liability, debt, obligation or expense
(including interest, reasonable legal fees, and expenses of
litigation) incurred or suffered or paid by, imposed upon,
resulting to or threatened against the Indemnified Party which
directly or indirectly results from, arises out of or in
connection with, is based upon or exists by reason of any
misrepresentation of facts relating to the Indemnifying Party
or any other representation or warranty made by the
Indemnifying Party in this Agreement. If an Indemnified Party
discovers or otherwise becomes aware of an indemnification
claim arising under this Agreement, the Indemnified Party will
give written notice to the Indemnifying Party, specifying such
claim, and may thereafter exercise any remedies available to
such party under this Agreement or applicable law; provided,
however, that the failure of an Indemnified Party to give
notice as provided herein will not relieve the Indemnifying
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Party of any obligations hereunder, to the extent the
Indemnifying Party is not materially prejudiced thereby.
11.14 Issuance of Shares. All shares of CEC Common Stock to be
issued to the Noteholder pursuant to the terms of this
Agreement will be issued in the name of Paribas North America,
Inc.
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
BNP PARIBAS
By: /s/ ALBERT YOUNG, JR.
--------------------------------------------
Albert Young, Jr., Director
By: /s/ EDWARD V. CANALE
--------------------------------------------
Name: Edward V. Canale
------------------------------------------
Title: Managing Director
-----------------------------------------
(the "Noteholder")
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Notice Address and Wire Instructions for the
Noteholder:
BNP Paribas
787 Seventh Avenue
New York, New York 10019
Attention: Albert Young, Jr.
Telephone No. (212) 841-2329
Facsimile No. (212) 841-3565
Fed Wire: Bankers Trust Company, New York
Acct Name: BNP Paribas, New York
ABA No.: 021-001-033
Acct No.: 04-202-195
Attention: R. O'Leary-Loan Department
Reference: Gothic Energy
-12-
<PAGE> 13
Schedule "1"
<TABLE>
<CAPTION>
Noteholder Face Amount of Notes 8/31/00 Accreted Value
----------- -------------------- ----------------------
<S> <C> <C>
BNP Paribas $4,000,000.00 $3,187,289.60
</TABLE>
-13-
<PAGE> 14
Schedule "2"
Initial Allocation of Purchase Price
<TABLE>
<CAPTION>
Noteholder Cash Portion Original Shares* Share Amount
---------- ------------ ---------------- ------------
<S> <C> <C> <C>
BNP Paribas $919,160.14 389,378 shares $2,268,129.46
</TABLE>
* Based on $5.825 per share
-14-
