EXHIBIT 10.37
FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is dated as of September 1, 1998 among: HS RESOURCES, INC., a
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corporation formed under the laws of the State of Delaware (the "Borrower");
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each of the lenders that is a signatory hereto; and THE CHASE MANHATTAN BANK (in
its individual capacity, "Chase"), as agent for the Lenders (in such capacity,
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together with its successors in such capacity, the "Agent").
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R E C I T A L S
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A. The Borrower, the Agent, and the Lenders (as defined in the Credit
Agreement as hereafter defined) have entered into that certain Amended and
Restated Credit Agreement dated as of June 14, 1996, as amended by the First
Amendment to Amended and Restated Credit Agreement dated as of June 17, 1996,
the Second Amendment to Amended and Restated Credit Agreement dated as of
November 27, 1996, the Third Amendment to Amended and Restated Credit Agreement
dated as of December 15, 1997 and the Fourth Amendment to Amended and Restated
Credit Agreement dated as of June 16, 1998 (as amended, the "Credit Agreement"),
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pursuant to which the Lenders have agreed to make certain loans and extensions
of credit to the Borrower upon the terms and conditions as provided therein; and
B. The Borrower, the Agent, and the Lenders now desire to make certain
amendments to the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration and the mutual benefits, covenants and agreements herein
expressed, the parties hereto now agree as follows:
1. All capitalized terms used in this Amendment and not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit Agreement.
2. Section 1.02 of the Credit Agreement is hereby supplemented, where
alphabetically appropriate, with the addition of the following definitions:
"Fifth Amendment" shall mean that certain Fifth Amendment to Amended
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and Restated Credit Agreement dated as of September 1, 1998, among the
Borrower, the Lenders and the Agent.
3. The Lenders and the Borrower agree that the Initial Period shall end on
the date this Amendment becomes effective in accordance with Section 5 of this
Amendment or such earlier date, if any, as set forth in the definition of
Initial Period.
4. The Borrower has entered into a Stock Purchase and Sale Agreement with
Universal Resources Corporation ("Buyer") dated July 27, 1998 ("Sales Ageement")
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in which the Borrower has agreed to sell HSRTW, Inc. ("HSRTW") and certain
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Subsidiaries of HSRTW for a purchase price of $157,539,511 in immediately
available funds ("HSRTW Stock Sale"). The Lenders consent to the HSR Stock Sale
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on the conditions that effective as of the date of the HSRTW Stock Sale the
Borrowing Base shall be reduced to $325,000,000 and that a portion of the
proceeds of the HSRTW Stock Sale shall be applied on that date as a prepayment
of the Loans to reduce the outstanding Loans to an aggregate amount not to
exceed the Borrowing Base established by this sentence. If the Borrower
complies with the conditions of the preceding sentence, HSRTW shall be
automatically released from its Guaranty Agreement without the need for further
documentation
5. This Amendment shall become binding on the Lenders when, and only when,
the following conditions shall have been satisfied and the Agent shall have
received each of the following, as applicable, in form and substance
satisfactory to the Agent or its counsel:
(a) counterparts of this Amendment executed by the Borrower and the
Lenders;
(b) satisfaction of the conditions set forth in Section 4 of this
Amendment: and
(c) such other documents as it or its counsel may reasonably request.
6. The parties hereto hereby acknowledge and agree that, except as
specifically supplemented and amended, changed or modified hereby, the Credit
Agreement shall remain in full force and effect in accordance with its terms.
7. The Borrower hereby reaffirms that as of the date of this Amendment,
the representations and warranties contained in Article VII of the Credit
Agreement are true and correct on the date hereof as though made on and as of
the date of this Amendment, except as such representations and warranties are
expressly limited to an earlier date.
8. THIS AMENDMENT (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY AND
ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
9. This Amendment may be executed in two or more counterparts, and it
shall not be necessary that the signatures of all parties hereto be contained on
any one counterpart hereof; each counterpart shall be deemed an original, but
all of which together shall constitute one and the same instrument. Delivery of
an executed signature page of this Amendment by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
[SIGNATURES NOT INCLUDED]
