Loan Agreement - Chesapeake Energy Marketing Inc. and Aubrey K. McClendon
SECOND AMENDED AND RESTATED
LOAN AGREEMENT
between
AUBREY K. McCLENDON
and
CHESAPEAKE ENERGY MARKETING, INC.
December 31, 1998
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TABLE OF CONTENTS
Page
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1. Loan Amount..................................................1
2. Note.........................................................1
2.1 Interest............................................1
2.2 Payments............................................2
2.3 No Readvances.......................................2
2.4 Prepayments.........................................2
3. Collateral Security..........................................3
4. Conditions of Lending........................................3
4.1 Loan Documents......................................3
4.2 No Violation........................................4
4.3 Additional Information..............................4
4.4 Prior Note Interest.................................4
4.5 JIBs................................................4
4.6 No Default..........................................4
4.7 Representations.....................................4
4.8 Opinion of Counsel..................................4
4.9 Financial Statements................................4
5. Representations and Warranties...............................4
5.1 Capacity and Power..................................5
5.2 Full Disclosure.....................................5
5.3 Financial Condition.................................5
5.4 Liabilities.........................................5
5.5 Ownership...........................................5
5.7 Survival of Representations.........................5
5.8 Pelican Lake........................................6
6. Covenants of the Borrower....................................6
6.1 Financial Statements................................6
6.2 Liquidation Assets Report...........................6
6.3 Notifications.......................................6
6.4 Records Inspections.................................6
6.5 Additional Documents................................7
6.6 Taxes...............................................7
6.7 Creation of Liens...................................7
6.8 Other Agreements....................................7
6.9 Indebtedness........................................7
7. Default......................................................8
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7.1 Nonpayment of Note..................................8
7.2 Other Nonpayment....................................8
7.3 Breach of Agreement.................................8
7.4 Representations and Warranties......................8
7.5 Insolvency..........................................8
7.6 Bankruptcy..........................................8
7.7 Receivership........................................8
7.8 Judgment............................................8
7.9 Insecurity..........................................9
8. Remedies.....................................................9
8.1 Termination.........................................9
8.2 Acceleration of Note................................9
8.3 Selective Enforcement...............................9
8.4 Waiver of Default...................................9
9. Miscellaneous................................................9
9.1 Expenses...........................................10
9.2 Notices............................................10
9.3 Severability.......................................10
9.4 Construction and Venue.............................11
9.5 No Waiver..........................................11
9.6 Counterparts.......................................11
9.7 Prior Agreement....................................11
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Schedule "A" - Form of Promissory Note
Schedule "B" - Liquidation Assets
Schedule "C" - Form of Second Amendment to Amended & Restated Security Agreement
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SECOND AMENDED AND RESTATED
LOAN AGREEMENT
THIS AGREEMENT is entered into effective the 31st day of December, 1998,
between AUBREY K. McCLENDON, an individual (the "Borrower"), and CHESAPEAKE
ENERGY MARKETING, INC., an Oklahoma corporation (the "Lender"), and amends and
restates in its entirety that certain Loan Agreement dated July 7, 1998, between
the Borrower and the Lender, as amended by that certain Amended and Restated
Loan Agreement dated July 13, 1998, as amended by that certain First Amendment
to Amended and Restated Loan Agreement dated August 19, 1998 (collectively, the
"Prior Agreement").
WHEREAS, under the Prior Agreement and the promissory note issued pursuant
thereto (the "Prior Note"), all principal of and interest on the Prior Note was
due on December 31, 1998; and
WHEREAS, the Borrower has requested that the Lender extend the maturity
date of the Prior Note and the obligations of the Borrower under the Prior
Agreement for a period not to exceed one year, and the Lender is agreeable to
such extension on the terms and conditions set forth herein and for the
consideration set forth herein and in the other Loan Documents (as hereinafter
defined).
NOW THEREFORE, the Borrower and the Lender hereby amend and restate the
Prior Agreement as follows:
W I T N E S S E T H :
1. Loan Amount. Subject to the terms and conditions of this Agreement, the
Lender agrees to extend the time of payment of the existing loan to the Borrower
in the principal amount of Four Million Eight Hundred Eighty-five Thousand
Dollars ($4,885,000.00).
2. Note. The loan to be made hereunder will be evidenced by the Promissory Note
(the "Note") in the form of Schedule "A" attached hereto as a part hereof and
payable on the following terms:
2.1 Interest. Except as otherwise provided in the Note, the unpaid
principal balance of the Note will bear interest at the per annum rate
equal to nine and one-eighth percent (9 1/8%). Except for interest
payments made pursuant to paragraph 2.4 of this Agreement, interest on
the Note will be payable quarterly commencing on March 31, 1999, and
on the last day of each successive June, September and December
thereafter until the Note is paid in full. All interest will be
computed
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at a per diem charge for the actual number of days elapsed on the
basis of a year consisting of three hundred sixty-five (365) days.
2.2 Payments. Each payment on the Note including, without limitation,
payments made pursuant to paragraph 2.4 hereof, will be applied first
to any obligations of the Borrower to the Lender under the Loan
Documents other than principal and interest, then to accrued unpaid
interest on the Note, and then to the unpaid principal balance of the
Note. The entire unpaid principal balance plus all accrued and unpaid
interest on the Note will be due and payable on December 31, 1999, or
at such earlier date as required under paragraph 8 of this Agreement.
2.3 No Readvances. The Borrower understands and agrees that the Note is
not a revolving note and that on any prepayment of principal, such
prepaid amount will not be readvanced.
2.4 Prepayments. The Borrower will have the right at any time to prepay
the Note in whole or in part, without premium or penalty, but with
interest accrued to the date of prepayment. In addition, the Borrower
hereby agrees that throughout the term of the Note the Borrower will
in good faith use the Borrower's best efforts to sell that portion of
the Collateral (as hereinafter defined) described in Schedule "B"
attached hereto as a part hereof (the "Liquidation Assets") in a
manner reasonably calculated to fully repay the Note on or before
December 31, 1999. In connection with the liquidation of the
Liquidation Assets, the Borrower agrees to consult with the members of
the loan committee (the "Loan Committee") of the Board of Directors of
the Lender's parent Chesapeake Energy Corporation (the "Company"). The
Borrower further agrees that in the event the unpaid principal balance
of the Note is more than: (a) $4,600,000.00 on March 31, 1999; (b)
$4,000,000.00 on June 30, 1999; or (c) $2,500,000.00 on September 30,
1999 (each a "Payment Hurdle"), the Lender (acting through the members
of the Loan Committee if so approved by the Loan Committee on behalf
of the Lender) will have the right at any time thereafter to dispose
of the Liquidation Assets in such manner and on such terms as the
Lender (acting through the members of the Loan Committee if so
approved by the Loan Committee on behalf of the Lender) determines in
the Lender's sole discretion and the Borrower hereby fully authorizes
and empowers (without the necessity of any further consent or
authorization from the Borrower) the Lender and appoints and makes the
Lender the Borrower's true and lawful attorney-in fact and agent for
the Borrower and in the Borrower's name, place and stead with full
power of substitution, in the Lender's name or the Borrower's name or
otherwise, for the Lender's sole use and benefit, but at the
Borrower's cost and expense, to dispose of the Liquidation Assets,
without notice, provided, however, the Lender and each member of the
Loan Committee will be under no obligation or duty to exercise the
power hereby conferred upon it and will be without liability for any
act or failure to act in connection with the disposition of the
Liquidation Assets. Unless the Lender, with the approval of the Loan
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Committee, otherwise consents in writing, all dispositions of
Liquidation Assets will be for cash or freely marketable securities.
On disposition of any Collateral one hundred percent (100%) of the
proceeds net of actual out of pocket expenses will be held in trust
and promptly delivered to the Lender to be applied to the Note in
accordance with paragraph 2.2 of this Agreement. With respect to the
Liquidation Assets owned by Chesapeake Investments, an Oklahoma
Limited Partnership (the "Pledgor"), the Borrower agrees to cause the
Pledgor to fully comply with the terms of this paragraph 2.4.
Notwithstanding the provisions of the Amended and Restated Employment
Agreement between the Borrower and the Company dated effective July 1,
1998 (the "Employment Agreement") in the event that at any time (1)
joint interest billings ("JIBs") in connection with participation in
the program wells spudded by the Company or its subsidiaries (the
"Drilling Program") as contemplated under the Employment Agreement are
not paid when due, or (ii) any of the Payment Hurdles are unsatisfied
("Participation Conditions") the Borrower agrees that in either event
the Borrower will not participate in the Drilling Program wells
spudded by the Company or its subsidiary corporations during any time
in which the Participation Conditions are not satisfied.
3. Collateral Security. Payment of the Note will be secured by a first lien on
and security interest in the property (the "Collateral") described in the
Amended and Restated Security Agreement dated July 13, 1998, as amended by that
certain First Amendment to Amended and Restated Security Agreement dated August
19, 1998, as further amended by that certain Second Amendment to Amended and
Restated Security Agreement in the form of Schedule "C" attached hereto as a
part hereof (the "Security Agreement") and any other Loan Documents. The
Borrower has requested release of the lien in favor of the Lender on the
Borrower's ownership interest in the Pelican Lake Stock and a portion of the
lien in favor of the Lender on the Borrower's interest in Core Systems, both
constituting Collateral securing the Loan . Subject to the terms and conditions
set forth below, the Lender hereby agrees to such releases. The Lender will
release the Pelican Lake Stock and thirty-seven and one-half percent (37 1/2%)
of the Borrower's interest in Core Systems constituting Collateral securing the
Loan in exchange for cash proceeds of a sale of such interest to be immediately
applied to reduction of outstanding amounts on the Note, in the order provided
under the first sentence of Section 2.2. Upon receipt of such proceeds, the
Lender will release an additional thirty-seven and one-half percent (37 1/2%) of
the remaining interest of the Borrower in Core Systems (the "Additional Interest
Released"), to the effect that twenty-five percent (25%) of such interest will
be retained by the Lender as Collateral securing the Note. Provided that the
Borrower is in compliance with the Participation Conditions on the date of such
payment, proceeds of a sale of the Additional Interest Released may be used by
the Borrower at his discretion. The release of any additional Collateral from
time to time at the request of the Borrower will be in the sole discretion of
the Lender and the Loan Committee.
4. Conditions of Lending. The obligation of the Lender to perform this Agreement
and to extend the time for payment of the indebtedness evidenced by the Note is
subject to the following conditions precedent.
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4.1 Loan Documents. This Agreement, the Note, the Security Agreement,
financing statements, stock powers, and related documents and all
extensions, amendments and modifications thereof (collectively, the
"Loan Documents") will have been duly executed, acknowledged (where
appropriate) by all parties thereto and delivered to the Lender, all
in form and substance satisfactory to the Lender.
4.2 No Violation. The advance under the Note will not cause the Lender to
be in violation of any law, rule, regulation or agreement applicable
to the Lender or the Company.
4.3 Additional Information. The Lender will have received such additional
documents, instruments and information as the Lender requests
including, without limitation, current financial statements of the
Borrower and information and valuation (based on fair value)
concerning any of the Collateral designated by the Lender in writing.
4.4 Prior Note Interest. The Borrower will have paid in full all accrued
and unpaid interest on the Prior Note through and including December
31, 1998.
4.5 JIBs. No JIBs will be overdue and unpaid under the terms of the
Employment Agreement as of the date of execution of this Agreement.
4.6 No Default. No default (however defined, but excluding margin
shortages) will have occurred or be continuing under the Borrower's
credit facility with Union Bank of California, N.A. (the "Union Bank
Facility") or any other agreement evidencing indebtedness of the
Borrower, or any other material agreement, unless such default will
have been effectively waived in writing by the other party or parties
thereto.
4.7 Representations. All representations of the Borrower in the Prior
Agreement, the security agreement executed in connection with the
Prior Agreement, hereunder or otherwise made by the Borrower to the
Lender or to the Loan Committee will be true and correct on and as of
the date hereof.
4.8 Opinion of Counsel. The Lender will have received an opinion of McAfee
& Taft that the Loan Documents are enforceable against the Borrower in
accordance with the terms thereof and that the execution, delivery and
performance of this Agreement will not: (a) violate any law, rule or
regulation under the laws of the State of Oklahoma or applicable
federal law; or (b) conflict with or cause a breach under any
agreement to which the Company or any of its subsidiaries is a party
or by which any of their respective properties are bound.
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4.9 Financial Statements. The Lender and the Loan Committee will have
received financial statements of the Borrower as of February 28, 1999,
including and reflecting transactions through such date.
5. Representations and Warranties. In order to induce the Lender to enter into
and perform the Loan Documents, the Borrower represents and warrants to the
Lender as follows:
5.1 Capacity and Power. The Borrower has adequate capacity, power and
legal right to enter into, execute, deliver and perform the terms of
the Loan Documents, to borrow money, to give security for borrowings
and to consummate the transactions contemplated by the Loan Documents.
The execution, delivery and performance of the Loan Documents by the
Borrower will not violate any law, regulation, rule or any other
agreement or instrument binding on the Borrower or the Collateral.
5.2 Full Disclosure. Neither this Agreement nor any statement or document
referred to herein or delivered to the Lender by the Borrower or any
other party on behalf of the Borrower contains any material untrue
statement or omits to state a material fact necessary to make the
statements herein or therein not misleading.
5.3 Financial Condition. The Borrower's financial statements dated as of
December 31, 1998, copies of which have been furnished to the Lender
are correct and complete and fairly reflect the financial condition of
the Borrower as of the date thereof and have been prepared in
conformity with accounting principles applied on a basis consistent
with that of preceding periods. There has occurred no material adverse
change in the financial condition of the Borrower from the date of
such financial statements to the date of execution of this Agreement.
5.4 Liabilities. The Borrower has no material liabilities, direct or
contingent, and has granted no security interests or liens on the
property of the Borrower, except those disclosed in the financial
statements referred to in paragraph 5.3 of this Agreement.
5.5 Ownership. The Borrower has good and marketable title to the
Collateral, free and clear of all liens, security interests, claims or
encumbrances, except for liens and security interests in favor of the
Lender.
5.6 No Default. No default (however defined, but excluding margin
shortages) has occurred or is continuing under any other agreement,
instrument or document between the Borrower and any person or under
any agreement secured by property of the Borrower including, without
limitation, the Union Bank Facility or any other agreement evidencing
indebtedness of the Borrower other than such defaults as have been
disclosed to the Lender prior to the date hereof or that have been
effectively waived in writing by such other party.
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5.7 Survival of Representations. All representations and warranties made
by the Borrower herein will survive the delivery of the Loan
Documents, and any investigation at any time made by or on behalf of
the Lender will not diminish the Lender's right to rely thereon. All
statements contained in any certificate or other instrument delivered
by or on behalf of the Borrower under or pursuant to this Agreement or
in connection with the transactions contemplated hereby will
constitute representations and warranties made by the Borrower
hereunder.
5.8 Pelican Lake. The sole assets of Pelican Lake, Inc. are the real
property located in Minnesota and the fixtures and personal property
located on or used in connection with such real property.
6. Covenants of the Borrower. Until the expiration of the Lender's obligation to
advance funds under this Agreement and payment in full of the Note, the Borrower
agrees that, unless the Lender waives compliance in writing:
6.1 Financial Statements. The Borrower will furnish the Lender and each of
the members of the Loan Committee the Borrower's financial statements
on a quarterly basis, within thirty (30) days after the end of each
calendar quarter, commencing with the calendar quarter ending March
31, 1999, and such additional financial statements as the Lender or
the Loan Committee might reasonably request.
6.2 Liquidation Assets Report. The Borrower will furnish to the Lender,
with a copy to each member of the Loan Committee, monthly within ten
(10) days after the end of each month commencing January 31, 1999, a
report, in form and substance satisfactory to the Lender and the Loan
Committee, setting forth the status of the Borrower's efforts to
dispose of the Liquidation Assets including, without limitation,
copies of any pending sale contracts, scheduled closing dates and
estimated expenses of sale and net proceeds.
6.3 Notifications. The Borrower will give prompt written notice to the
Lender and each member of the Loan Committee of: (a) any event of
default; (b) any event of default or acceleration under any other
lending arrangement to which the Borrower is a party; (c) all material
litigation affecting the Borrower or the Collateral; and (d) any other
matter which has resulted in, or might result in (i) a material
adverse change in the financial condition of the Borrower, or (ii) a
material adverse change in the ability of the Borrower to perform the
Borrower's obligations, warranties, covenants and conditions of the
Loan Documents.
6.4 Records Inspections. The Borrower will and will cause the Pledgor to
maintain full and accurate accounts and records of the Borrower's and
the Pledgor's respective businesses on a basis consistent with prior
periods. The Borrower will and will cause the Pledgor to permit the
Lender and the Lender's designated representatives
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including, without limitation, the Loan Committee, to have access to
the Borrower's and the Pledgor's respective records and accounts at
all reasonable times to perform such inspections, audits and
examinations as the Lender or the Loan Committee might reasonably
request from time to time. In addition, the Borrower agrees that if
any Payment Hurdle is not met, upon request of the Lender or the Loan
Committee, the Borrower will and will cause the Pledgor to permit the
Lender or members of the Loan Committee from time to time to consult
with any managers, investment bankers, brokers or similar persons
assisting in the liquidation of the Liquidation Assets, and the
Borrower will and will cause the Pledgor to assist the Lender or such
members of the Loan Committee in obtaining consultations with
management and key representatives of the companies whose securities
constitute Liquidation Assets.
6.5 Additional Documents. The Borrower will promptly, on demand by the
Lender or the Loan Committee, perform or cause to be performed such
actions and execute or cause to be executed all such additional
agreements, contracts, indentures, documents and instruments as might
be reasonably requested by the Lender or the Loan Committee to satisfy
the requirements of this Agreement.
6.6 Taxes. All taxes, assessments, governmental charges and levies imposed
on the Borrower, the Pledgor or their respective assets, income and
profits will be paid prior to the date on which penalties attached
thereto, provided that the Borrower will not be required to pay any
such charge which is being contested in good faith by proper
proceedings.
6.7 Creation of Liens. The Borrower will not create, assume or suffer to
exist any deed of trust, mortgage, pledge, security interest,
encumbrance or other lien (including the lien of an attachment,
judgment or execution) securing a charge or obligation affecting any
property of the Borrower, excluding only: (a) liens for governmental
charges which are not delinquent or the validity of which is being
contested in good faith by appropriate proceedings and as to which
adequate reserves have been established under generally accepted
accounting principles; (b) deposits made to secure statutory and other
obligations incurred in the ordinary course of the Borrower's
business; (c) liens to the Lender contemplated by this Agreement; (d)
liens in existence on the date hereof, liens on the Pelican Lake stock
or liens otherwise securing indebtedness permitted by paragraph 6.9
hereof; and (e) liens specifically approved after the date of this
Agreement by the Loan Committee in writing. The Borrower will cause
the Pledgor not to create, assume or suffer to exist any deed of
trust, mortgage, pledge, security interest, encumbrance or other lien
(including the lien of an attachment, judgment or execution) securing
a charge or obligation affecting any of the Collateral pledged by the
Pledgor.
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6.8 Other Agreements. The Borrower will not enter into any agreement that
limits or restricts the ability of the Borrower to comply with the
terms of the Loan Documents.
6.9 Indebtedness. The Borrower agrees that he will not incur or permit to
exist any indebtedness of the Borrower, or indebtedness secured by a
lien or security interest on any property of the Borrower, other than:
(a) the indebtedness in effect on the date hereof and described in the
most recent financial statements delivered to the Lender and the Loan
Committee; (b) indebtedness incurred to refinance or restructure any
indebtedness referred to in (a) above; (c) indebtedness a material
portion of which is incurred to pay principal or interest on the Note;
(d) indebtedness secured by the Pelican Lake Stock; and (e) other
indebtedness not to exceed $500,000.00.
7. Default. The Lender may terminate all of the Lender's obligations under the
Loan Documents and may declare the Note and all other indebtedness and
obligations of the Borrower owing to the Lender to be due and payable if any of
the following events of default occur and have not been cured or waived by the
Lender:
7.1 Nonpayment of Note. Default in payment when due of any interest on or
principal of the Note; or
7.2 Other Nonpayment. Default in the payment of any amount payable to the
Lender under the terms of the Loan Documents or any agreement in
connection therewith; or
7.3 Breach of Agreement. (a) Default in the performance or observance of
any covenant contained in the Loan Documents, any other agreement
between the Borrower and the Lender or under the terms of any other
instrument delivered to the Lender in connection with this Agreement;
or (b) default has occurred in any other agreement evidencing
indebtedness of the Borrower, after giving effect to any grace periods
with respect thereto, unless such default has been cured or waived in
writing; or
7.4 Representations and Warranties. Any representation, statement,
certificate, schedule or report made or furnished to the Lender on
behalf of the Borrower proves to be false or erroneous in any material
respect or any warranty ceases to be complied with in any material
respect; or
7.5 Insolvency. The Borrower admits the inability to pay the Borrower's
debts as such debts mature; or
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7.6 Bankruptcy. The institution of bankruptcy, reorganization,
readjustment of debt, liquidation or receivership proceedings by or
against the Borrower under the Bankruptcy Code, as amended, or any
party thereof, or under any other laws, whether state or federal, for
the relief of debtors, now or hereafter existing; or
7.7 Receivership. The appointment of a receiver or trustee for the
Borrower or for any substantial part of the Collateral; or
7.8 Judgment. Entry by any court of a final judgment against the Borrower
or an attachment of any part of the Collateral by any means,
including, without limitation, levy, distraint, replevin or self-help,
which is not discharged or stayed within ten (10) days thereof; or
7.9 Insecurity. The Lender or the Loan Committee deems, in its sole
judgment, for any reason that the likelihood of repayment of the Note
is insecure regardless of whether the Borrower is otherwise in
compliance hereunder.
8. Remedies. On the occurrence of any event of default the Lender may, at the
Lender's option:
8.1 Termination. Terminate the Lender's obligations hereunder.
8.2 Acceleration of Note. Declare the Note and all sums due pursuant to
the Loan Documents to be immediately due and payable, whereupon the
same will become forthwith due and payable, and the Lender will be
entitled to proceed to selectively and successively enforce the
Lender's rights under the Loan Documents or any other instruments
delivered to the Lender in connection with the Loan Documents;
provided that if any event of default specified in paragraphs 7.5, 7.6
or 7.7 will occur, all amounts owing under the Loan Documents,
including the Note, will thereafter become due and payable
concurrently therewith, and the Lender's obligations hereunder will
automatically terminate, without presentment, demand, protest, notice
of default, notice of acceleration or intention to accelerate or other
notice of any kind, all of which the Borrower hereby expressly waives.
8.3 Selective Enforcement. The Lender is not required to proceed against
the Collateral to satisfy the obligations of the Borrower hereunder
which are general obligations of the Borrower. The Lender may elect to
proceed against the Collateral in any order or priority, however, the
Borrower will be liable for any deficiency. In the event the Lender
elects to selectively and successively enforce the Lender's rights
under any one or more of the instruments securing payment of the
indebtedness evidenced by the Note, such action will not be deemed a
waiver or discharge of any remaining indebtedness hereunder or of any
other lien or encumbrance securing payment of any of the indebtedness
evidenced by the Note
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until such time as the Lender has been paid in full all sums advanced
by the Lender plus all accrued interest thereon.
8.4 Waiver of Default. The Lender may, solely by an instrument or
instruments in writing, approved by the Loan Committee and signed by
the Lender, waive any default which has occurred and any of the
consequences of such default, and, in such event, the Lender and the
Borrower will be restored to their respective former positions, rights
and obligations hereunder. Any default so waived will, for all
purposes of this Agreement, be deemed to have been cured and not to be
continuing, but no such waiver will extend to any subsequent or other
default or impair any consequence of such subsequent or other default.
9. Miscellaneous. It is further agreed as follows:
9.1 Expenses. All reasonable out-of-pocket expenses incurred by the Lender
in connection with the enforcement of the Loan Documents including,
without limitation, reasonable attorneys' fees, will be paid by the
Borrower. In addition, the Borrower will pay all recording fees and
all other costs and fees incurred in connection with the loan or the
Loan Documents.
9.2 Notices. All notices, requests and demands will be served by hand
delivery, telefacsimile or by registered or certified mail, with
return receipt requested, as follows:
To the Borrower: Mr. Aubrey K. McClendon
6100 North Western
Oklahoma City, Oklahoma 73118
Fax No. (405) 848-8588
To the Lender: Chesapeake Energy Marketing, Inc.
6100 North Western
Oklahoma City, Oklahoma 73118
Attention: Mr. Marcus C. Rowland
Fax No. (405) 879-9580
To the Loan
Committee: Mr. Edgar F. Heizer, Jr.
Dover House
Tucker's Town, Bermuda H502
Fax No. (441) 293-5557
Mr. Walter C. Wilson
2001 Kirby Drive, Suite 1107
Houston, Texas 77019-6033
Fax No. (713) 520-5950
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or at such other address as either party designates for such purpose a
written notice to the other party. Notice will be deemed to have been
given on the date actually received in the event of personal or
telefacsimile delivery or on the date two (2) days after notice is
deposited in the mail, properly addressed, postage prepaid.
9.3 Severability. In the event any one or more of the provisions contained
in any of the Loan Documents is determined to be invalid, illegal or
unenforceable in any respect in any jurisdiction, the validity,
legality and enforceability of such provision or provisions will not
in any way be affected or impaired thereby in any other jurisdiction
nor will the validity, legality and enforceability of the remaining
provisions contained in the Loan Documents in any way be affected or
impaired thereby.
9.4 Construction and Venue. This Agreement, the documents issued hereunder
and that certain letter dated March 22, 1999 from the Borrower to
Frederick B. Whittemore, Edgar F. Heizer, Jr. and Walter C. Wilson
(the "Letter") are executed and delivered as an incident to a lending
transaction negotiated and to be performed in Oklahoma County,
Oklahoma and together constitute the agreement of the parties hereto.
The Loan Documents and the Letter are intended to constitute a
contract made under the laws of the State of Oklahoma and to be
construed in accordance with the internal laws of the State of
Oklahoma. The descriptive headings of the paragraphs of this Agreement
are for convenience only and are not to be used in the construction of
the content of this Agreement. All actions relating to or arising
under the Loan Documents will be instituted in the courts of the State
of Oklahoma sitting in Oklahoma County, Oklahoma, or the United States
District Court for the Western District of Oklahoma, and the Borrower
irrevocably and unconditionally waives any objection to the venue in
such court and any claim that any action has been brought in an
inconvenient forum.
9.5 No Waiver. No advance of loan proceeds under the Loan Documents will
constitute a waiver of any of the Borrower's representations,
warranties, conditions or covenants under the Loan Documents.
9.6 Counterparts. This Agreement may be executed via telefacsimile in two
or more counterparts and it will not be necessary that the signatures
of all parties hereto be contained on any one counterpart hereof. Each
counterpart will be deemed an original, but all counterparts together
will constitute one and the same instrument.
9.7 Prior Agreement. This Second Amended and Restated Loan Agreement is an
amendment and restatement of the Prior Agreement, executed in
replacement of,
Initial Approval FINAL DOCUMENT
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but not in extinguishment of, the Prior Agreement. In the event that
this Agreement or the Note are deemed not to be in force and effect,
the Prior Agreement and the Prior Note will be in force and effect,
under the terms and conditions set forth therein. In such event, the
Lender will not be deemed to have waived any of its rights and
benefits under the Prior Agreement or the Prior Note.
Initial Approval FINAL DOCUMENT
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<PAGE> 17
IN WITNESS WHEREOF, the Borrower and the Lender have executed this
Agreement effective on the date first above written.
/s/ AUBREY K. McCLENDON
--------------------------------------------
AUBREY K. McCLENDON, individually
(the "Borrower")
CHESAPEAKE ENERGY MARKETING, INC., an
Oklahoma corporation
By /s/ MARCUS C. ROWLAND
-----------------------------------------
Marcus C. Rowland, Vice President
and Chief Financial Officer
(the "Lender")
The execution by the Lender of this Agreement has been approved by the
undersigned who constitute all of the members of the Loan Committee.
/s/ WALTER C. WILSON
--------------------------------------------
WALTER C. WILSON, individually
/s/ EDGAR F. HEIZER, JR.
--------------------------------------------
EDGAR F. HEIZER, JR., individually
(the "Loan Committee")
13