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EXHIBIT 10.43
NINTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS NINTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is dated as of October 28, 1999 among: HS RESOURCES, INC., a
corporation formed under the laws of the State of Delaware (the "Borrower");
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,
together with its successors in such capacity, the "Agent").
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, the Fourth Amendment to Amended and Restated
Credit Agreement dated as of June 16, 1998, the Fifth Amendment to Amended and
Restated Credit Agreement dated as of September 1, 1998, the Sixth Amendment to
Amended and Restated Credit Agreement dated as of December 10, 1998, the Seventh
Amendment to Amended and Restated Credit Agreement dated as of December 31, 1998
and the Eighth Amendment to Amended and Restated Credit Agreement dated as of
August 27, 1999 (as amended, the "Credit Agreement"), 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;
B. The Borrower has entered into negotiations with KN Energy, Inc. (now
Xxxxxx-Xxxxxx, Inc.("KMI")) to acquire KMI's Wattenberg gathering and
transmission assets and in connection therewith, KMI and KN Gas Gathering, Inc.,
("KNGG"), as Sellers, and the Borrower, as Buyer, will execute that certain
Purchase and Sale Agreement and KNGG and the Borrower will execute that certain
Operating Services Agreement, both to be dated on or about October 29, 1999,
together such agreements providing substantially the following:
(i) Sellers would sell and Buyer would purchase the Sellers'
Wattenberg gathering and transmissions system located in Xxxxx,
Arapahoe, Boulder, Denver, Larimer and Weld Counties, Colorado,
including without limitation, rights in a lease as lessee covering some
or all of such Property ("Wattenberg Gathering System");
(ii) The Borrower would commence operation of the Wattenberg
Gathering System on November 1, 1999. The Borrower would be obligated
to pay the costs of operating the Wattenberg Gathering System and would
bear the risk of uninsured loss. KNGG would pay the Borrower a fixed
fee that is expected to equal the costs of operating the Wattenberg
Gathering System;
(iii) Sellers would retain legal title or lease rights to the
Wattenberg Gathering System until the Closing, to be held on or about
December 15, 2001;
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(iv) The Borrower would pay $1,000,000 in cash on or about
October 29, 1999;
(v) The Borrower would extend its commitment of gas to the
Wattenberg Gathering System through December 31, 2001, under the terms
of existing gathering agreements;
(vi) The Borrower would pay a facility fee of $360,000 per
month from January 2000 through December 2001;
(vii) Sellers would retain Wattenberg Gathering System gross
margin revenue through December 31, 2001, provided that the Borrower
would pay Sellers any shortfall below 95% of currently projected gross
margin revenue of approximately $2,300,000 per month and the Borrower
would receive any excess above 105% of that amount; and
(viii) The Borrower would make a final payment at Closing of
$30,000,000, consisting of a cash payment of approximately $7,000,000
and an assumption of an operating lease concerning gathering equipment
with a projected balance as of closing of approximately $23,000,000.
C. The Borrower, the Agent, and the Lenders now desire to make certain
amendments to the Credit Agreement to permit such acquisition.
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:
"Ninth Amendment" shall mean that certain Ninth Amendment to
Amended and Restated Credit Agreement dated as of October 28, 1999,
among the Borrower, the Lenders and the Agent.
"Wattenberg Gathering System" shall have the meaning assigned
in the Recitals to the Ninth Amendment.
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3. Section 9.01 of the Credit Agreement is hereby amended by adding the
following clause (p):
"(p) the consideration to be paid, performed and assumed by
the Borrower or HS Gathering, LLC for the acquisition of the Wattenberg
Gathering System as described in the Recitals to the Ninth Amendment,
and a guaranty by the Borrower of the obligations of the current lessee
under the operating lease as well as the obligations of HS Gathering,
LLC as a result of the assumption of such lease."
4. Section 9.02 of the Credit Agreement is hereby amended by adding the
following clause (h):
"(h) a Lien on certain Properties of the Wattenberg Gathering
System owned by HS Gathering, LLC to secure Debt assumed or incurred to
acquire the Wattenberg Gathering System and all extension, renewals and
replacements of such Debt."
5. Section 9.03(m) of the Credit Agreement is hereby amended by adding
the following before the semi-colon at the end of the clause:
"and an investment by the Borrower and its Subsidiaries in the
Wattenberg Gathering System through the Borrower's 100% ownership of HS
Gathering, LLC and XX Xxxxxxxxxx Transmission, LLC"
6. Section 9.18 of the Credit Agreement is hereby amended by adding the
following before the period at the end of the first sentence in such section:
", other than HS Gathering, LLC and XX Xxxxxxxxxx Transmission, LLC,
which will be 100% owned by the Borrower"
7. 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 Majority Lenders;
(b) a Guaranty Agreement executed by HS Gathering, LLC; and
(c) the execution, delivery and effectiveness of the Purchase
and Sale Agreement covering the sale of the Wattenberg Gathering System
to the Borrower and HS Gathering, LLC.
8. 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.
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9. 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.
10. 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.
11. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date set forth in the opening paragraph of this Amendment..
BORROWER: HS RESOURCES, INC.
By:
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Name:
Title:
LENDER AND AGENT: THE CHASE MANHATTAN BANK
By:
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Name:
Title:
LENDERS: ABN AMRO BANK N.V.
San Francisco International Branch
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:
---------------------------------
Name:
Title:
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XXXXX XXXX XX XXXXXXXXXX, N.A.
By:
---------------------------------
Name:
Title:
XXXXX FARGO BANK, N.A.
By:
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Name:
Title:
PARIBAS
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
BANK ONE, NA (FORMERLY KNOWN AS
FIRST NATIONAL BANK OF CHICAGO)
By:
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Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
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Name:
Title:
X-0
0
XXXXXXXXXXX XXXXXXX XXXX.
By:
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Name:
Title:
By:
---------------------------------
Name:
Title:
ROYAL BANK OF CANADA
By:
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Name:
Title:
BANK OF SCOTLAND
By:
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Name:
Title:
FIRST UNION NATIONAL BANK
By:
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Name:
Title:
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