1
EXHIBIT 10.37
FIFTH AMENDMENT AND SUPPLEMENT TO
AMENDED, RESTATED AND CONSOLIDATED MORTGAGE, ASSIGNMENT
OF PRODUCTION. SECURITY AGREEMENT AND FINANCING STATEMENT
THIS FIFTH AMENDMENT AND SUPPLEMENT TO AMENDED, RESTATED AND CONSOLIDATED
MORTGAGE, ASSIGNMENT OF PRODUCTION, SECURITY AGREEMENT AND FINANCING STATEMENT
(this "AMENDMENT") is entered into as of the effective time and date hereinafter
stated (the "EFFECTIVE DATE") by and between HS RESOURCES, INC., a Delaware
corporation with an address for notice hereunder of Xxx Xxxxxxxx Xxxxx, 00xx
Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 ("MORTGAGOR") and THE CHASE MANHATTAN
BANK (formerly known as The Chase Manhattan Bank, N.A.), a state banking
association with of offices and banking quarters at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, as agent for the lenders which are or become parties to the
Credit Agreement referred to below (collectively called the "LENDERS") (in such
capacity as agent, together with its successors in such capacity, the
"MORTGAGEE").
R E C I T A L S
A. Mortgagor, the Agent and certain lenders entered into a Credit Agreement
dated as of July 15, 1994 (as amended, the "1994 CREDIT AGREEMENT") which
amended and restated that certain Credit Agreement dated as of March 11, 1993,
as amended.
B. The 1994 Credit Agreement was secured by, among other things, that
certain Amended, Restated and Consolidated Mortgage, Assignment of Production,
Security Agreement and Financing Statement dated March 11, 1993 from Mortgagor
to the Mortgagee, duly recorded on March 12, 1993 in Book 1373, Film 1766 of the
Real Estate Records of Weld County, Colorado with Reception No. 02324792, as
amended by First Amendment to Amended, Restated and Consolidated Mortgage,
Assignment of Production, Security Agreement and Financing Statement dated May
19, 1993 and duly recorded on August 30, 1993 in Book 1399, Film 1243 of the
Real Estate Records of Weld County, Colorado with Reception No. 02348251, Second
Amendment to Amended, Restated and Consolidated Mortgage, Assignment of
Production, Security Agreement and Financing Statement dated December 10, 1993
and duly recorded on December 20, 1993 in Book 1417, Film 1622 of the Real
Estate Records of Weld County, Colorado with Reception No. 02364884 and Third
Amendment to Amended, Restated and Consolidated Mortgage, Assignment of
Production, Security Agreement and Financing Statement dated as of July 15, 1994
and duly recorded on August 4, 1994 in Book 1453 at Film 1745 of the Real Estate
Records of Weld County, Colorado with Reception No. 2401068 (collectively, the
"HSR MORTGAGE").
C. The 1994 Credit Agreement was also secured by that certain Mortgage,
Assignment of Production, Security Agreement and Financing Statement dated as of
as of July 30, 1993 from Energy Minerals Corporation and recorded in various
counties in the State of Colorado as follows:
2
Date
County Filed/Recorded Recording Data
---------------------------------------------------------------------
Xxxxx August 4, 1993 Book 4123, Film 621,
Reception No. 01163316
Arapahoe August 4, 1993 Book 7064, Film 262
Xxxx August 3, 1993 Book 554, Film 471.
Reception No. 379179
Xxxxxx August 4, 1993 Book 475, Film 742.
Reception No. 311772
Xxxxx August 3, 1993 Book 872, Film 259,
Reception No. 605307
Xxxxxx August 4, 1993 Book 957, Film 582,
Reception No. 737381
Weld August 4, 1993 Book 1395,
Reception No. 2344624
Yuma August 3, 1993 Book 72O, Film 233.
Reception No. 469207:
as amended by First Amendment to Mortgage, Assignment of Production, Security
Agreement and Financing Statement dated as of July 15, 1994 (collectively, the
"EMC MORTGAGE") and recorded in various counties in the State of Colorado as
follows:
Date
County Filed/Recorded Recording Data
-------------------------------------------------------------------
Xxxxx August 5, 1994 Book 4369, Page 567,
Reception No. C0006364
Arapahoe August 8, 1994 Book 7660, Page 545.
Reception No. 112791
Xxxx August 10, 1994 Book 558, Page 622,
Reception No. 381282
Xxxxxx August 4, 1994 Book 500, Page 607
Xxxxx August 4, 1994 Book 883, Page 462
Xxxxxx August 4, 1994 Book 971, Page 170
Weld August 4, 1994 Book 1453, Page 1743,
Reception No. 2401066
Yuma August 4, 1994 Book 735, Page 99,
Reception No. 473320
D. To evidence the merger of Energy Minerals Corporation into
Mortgagor. Mortgagor and Mortgagee amended, restated and consolidated the HSR
Mortgage and the EMC Mortgage by Amended, Restated and Consolidated Mortgage,
Assignment of Production, Security Agreement and Financing Statement dated as of
September 1, 1995 (which instrument,
3
together with all amendments, assignments and supplements thereto, is called the
"MORTGAGE") which was recorded in various counties in the State of Colorado as
follows:
Date
County Filed/Recorded Recording Data
---------------------------------------------------------------------
Xxxxx September 14, 1995 Book 4588, Page 745,
Reception No. C0107105
Arapahoe September 15, 1995 Book 8109, Page 405,
Reception No. 96553
Xxxx September 13, 1995 Book 563, Page 714,
Reception No. 383819
Xxxxxx September 13, 1995 Book 526, Page 722
Xxxxx September 13, 1995 Book 894, Page 370
Xxxxxx September 15, 1995 Book 985, Page 428
Weld September 13, 1995 Book 1511, Page 203,
Reception No. 2455532
Yuma September 13, 1995 Book 752, Page 227,
Reception No. 478288;
as amended by First Amendment and Supplement to Amended, Restated and
Consolidated Mortgage, Assignment of Production, Security Agreement and
Financing Statement dated as of December 14, 1995 between Mortgagor and
Mortgagee and duly recorded on December 20, 1995 in Weld County, Colorado in
Book 1523, Page 665, Reception No. 2468477 (the "FIRST AMENDMENT TO MORTGAGE").
E. Mortgagor, Mortgagee and certain lenders refinanced the debt under the
1994 Credit Agreement by entering into that certain Credit Agreement dated as of
June 7, 1996 (the "JUNE 7 CREDIT AGREEMENT").
F. Mortgagor, Mortgagee and certain lenders (the "LENDERS") amended and
restated the June 7 Credit Agreement by that certain Amended and Restated Credit
Agreement dated as of June 14, 1996 (the "JUNE 14 CREDIT AGREEMENT").
G. The Mortgage was assigned and amended by Assignment of Liens and
Amendment of Amended, Restated and Consolidated Mortgage, Assignment of
Production, Security Agreement and Financing Statement dated as of June 14, 1996
(the "SECOND AMENDMENT TO MORTGAGE"), which was duly recorded in the State of
Colorado as follows:
4
Date
County Filed/Recorded Recording Data
---------------------------------------------------------------
Xxxxx 7/12/96 Book 4794, Page 174
Arapahoe 8/22/96 Reception No. A6109953
Xxxx 6/28/96 Book 567, Page 414
Xxxxxx 6/27/96 Book 548, Page 116
Xxxxx 6/28/96 Book 903, Page 330
Xxxxxx 7/3/96 Book 996, Page 959
Weld 6/27/96 Book 1554, Page 151
Yuma 6/28/96 Book 764, Page 214
H. The June 14 Credit Agreement was amended by First Amendment to Amended
and Restated Credit Agreement dated as of June 17,1996 and Second Amendment to
Amended and Restated Credit Agreement dated as of November 27, 1996 (the June 14
Credit Agreement as amended is herein called the "NEW CREDIT AGREEMENT").
I. The Mortgage has been further amended by Third Amendment of Amended,
Restated and Consolidated Mortgage, Assignment of Production, Security Agreement
and Financing Statement dated as of July 25, 1996 (the "THIRD AMENDMENT TO
MORTGAGE"), which was duly recorded in the State of Colorado as follows:
Date
County: Filed/Recorded Recording Data
------------------------------------------------------------------
Xxxxx 9/3/96 Book 4828, Page 624
Reception #C0208849
Arapahoe 8/30/96 Reception #X00000000
Xxxx 8/30/96 Book 568, Page 205
Xxxxxx 9/9/96 Book 554, Page 231
Xxxxx 8/30/96 Book 905, Page 617
Xxxxxx 8/30/96 Book 999, Page 634
Weld 9/3/96 Book 1564, Page 729
Yuma 8/30/96 Book 766, Page 548,
Reception #482433
and by Fourth Amendment of Amended, Restated and Consolidated Mortgage,
Assignment of Production, Security Agreement and Financing Statement dated as of
January 1, 1997 (the "FOURTH AMENDMENT TO MORTGAGE"), which was duly recorded in
the State of Colorado as follows:
5
Date
County: Filed/Recorded Recording Data
---------------------------------------------------------------
Xxxxx 1/30/97 Bk. 4928, Pg. 37
Arapahoe 1/23/97 A7008017
Xxxx 1/24/97 Bk. 569, Pg. 842
Xxxxxx 1/23/97 Bk. 561, Pg. 768
Xxxxx 1/24/97 Bk. 909, Pg. 869
Xxxxxx 1/24/97 Bk. 1005, Pg. 488
Weld 1/23/97 Bk. 1588, Pg. 394
Yuma 1/24/97 Bk. 772, Pg. 342
J. The Mortgage, the First Amendment to Mortgage, the Second Amendment to
Mortgage, the Third Amendment to Mortgage and the Fourth Amendment to Mortgage
are herein collectively called the "MORTGAGE".
Of even date herewith, Mortgagor, Mortgagee and the Lenders are amending
the New Credit Agreement by executing that certain Third Amendment to Amended
and Restated Credit Agreement, and in connection therewith, Mortgagor and
Mortgagee desire to amend the Mortgage.
NOW, THEREFORE, in view of the foregoing and for valuable consideration,
the receipt of which is hereby acknowledged, Mortgagor and Mortgagee do hereby
agree as follows:
1. All capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Mortgage.
2. All references in the Mortgage to "this Mortgage", as defined in the
opening paragraph of the Mortgage shall mean the Mortgage, as amended hereby and
as the same may from time to time be further amended or supplemented.
3. Section II(a) of the Mortgage is hereby amended in its entirety to read
as follows:
"(a) any and all indebtedness, obligations and liabilities incurred by
Mortgagor pursuant to the Amended and Restated Credit Agreement dated as of
June 14, 1996, as amended by First Amendment to Amended and Restated Credit
Agreement dated as of June 17, 1996, Second Amendment to Amended and
Restated Credit Agreement dated as of November 27, 1996 and Third Amendment
to Amended and Restated Credit Agreement dated as of December 15, 1997
(such Credit Agreement as amended and as the same may be further amended,
modified or restated from time to time, the "CREDIT AGREEMENT") among the
Company, Assignee and the lenders that are now or hereafter parties to the
Credit Agreement ("Lenders"), including without limitation, those certain
promissory notes which have been or may be executed by Mortgagor payable to
the order of the Lenders and being in the aggregate principal amount of
$450,000,000 with final maturity on or before December 15, 2002 and all
6
other NOTES GIVEN in substitution therefor or in modification, renewal or
extension thereof, in whole or in part (such notes, as from time to time
supplemented, amended or modified and all other notes given in substitution
therefor or in modification, renewal or extension thereof, in whole or in
part, being hereafter called the "NOTES")."
4. Mortgagor hereby confirms that it has heretofore granted, bargained,
sold, assigned, mortgaged, warranted, transferred and conveyed, and granted a
security interest to Mortgagee in, the Mortgaged Property, and Mortgagor further
grants, bargains, sells, assigns, mortgages, warrants, transfers and conveys,
and grants a security interest to Mortgagee in the Mortgaged Property to
Mortgagee on behalf of the Lenders to secure the payment and performance of the
Indebtedness as such definition is amended herein.
5. Mortgagor hereby confirms that it has heretofore absolutely and
unconditionally assigned, transferred and conveyed and does hereby absolutely
and unconditionally assign, transfer and convey to Mortgagee, its successors and
assigns, in accordance with the Mortgage as amended hereby, all of the
Hydrocarbons and all products obtained or processed therefrom attributable to
the Hydrocarbon Property, and the revenues and proceeds now and hereafter
attributable to the Hydrocarbons and said products and all payments in lieu of
the Hydrocarbons such as "take or pay" payments or settlements.
6. The parties hereto hereby acknowledge and agree that except as
specifically amended, changed or modified hereby, the Mortgage shall remain in
full force and effect in accordance with its terms. None of the rights, titles
and interests existing and to exist under the Mortgage, as amended, are hereby
released, diminished or impaired, and Mortgagor hereby reaffirms all covenants,
representations and warranties made in the Mortgage.
7. 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.
[SIGNATURES BEGIN NEXT PAGE]
7
EXECUTED as of the 15th day of December, 1997, but effective as of December
15, 1997 (the "Effective Date ').
MORTGAGOR:
HS RESOURCES, INC.
By: By:
------------------------------ ----------------------------
Xxxxx X. Xxxxxxx Xxxxxx X. Xxxxxx
Secretary Vice President
Attest:
MORTGAGEE:
THE CHASE MANHATTAN BANK
(formerly known as The Chase Manhattan
Bank, N.A.), as Agent
By:
----------------------------
Xxxx Xx Xxxxxxxx
Vice President
8
STATE OF TEXAS )
)
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me on December 14th,
1997 by Xxxxxx X. Xxxxxx, Vice President of HS RESOURCES, INC., a Delaware
corporation, on behalf of such corporation.
---------------------------------
Notary Public in and for the
State of Texas
Seal:
XXXXX X. XXXXX
Notary Public, State of Texas
My Commission Expires 00-00-00
XXXXX XX XXX XXXX )
)
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me on December 18,
1997, by Xxxx Xx Xxxxxxxx, Vice President of THE CHASE MANHATTAN BANK, state
banking corporation, on behalf of such corporation
---------------------------------
Notary Public in and for the
State of New York
Seal:
XXX XXXXX
NOTARY PUBLIC STATE OF NEW YORK
NO. 00-0000000
QUALIFIED IN KINGS COUNTY
CERTIFICATE FILED IN NEW YORK COUNTY
COMMISSION EXPIRES 11-16-98
9
ANNEX I
LIST OF MAXIMUM CREDIT AMOUNTS
Maximum
Name of Lender Percentage Share Credit Amount
-------------- ---------------- -------------
The Chase Manhattan Bank 10.0000000% $ 45,000,000
Xxxxx Fargo Bank, N.A. 8.8888888% $ 40,000,000
CIBC, Inc. 8.8888888% $ 40,000,000
Credit Lyonnais New York Branch 8.8888888% $ 40,000,000
Union Bank of California, N.A. 8.8888888% $ 40,000,000
Banque Paribas 8.8888888% $ 40,000,000
Royal Bank of Canada 7.0000000% $ 35,000,000
Den norske Bank ASA 7.7777777% $ 35,000,000
ABN AMRO Bank N.V. 6.6666666% $ 30,000,000
Societe Generale 6.6666666% $ 30,000,000
MeesPierson, N.V. 5.5555555% $ 25,000,000
First Union National Bank 4.4444444% $ 20,000,000
The Sanwa Bank, Limited 4.4444444% $ 20,000,000
Credit Agricole Indosuez 2.2222222% $ 10.000.000
---------------------------------------------------
Totals 100% $450,000,000
