Exhibit 10.28
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (herein called the
"Amendment") made as of March 4, 2002, by and among St. Mary Land &
Exploration Company, a Delaware corporation ("Borrower"), Bank of America, N.A.,
individually and as Agent ("Agent"), and the undersigned lenders (the
"Lenders").
W I T N E S S E T H:
WHEREAS, Borrower, Agent and Lenders entered into that certain Credit
Agreement dated as of June 30, 1998 (as heretofore amended, modified or
supplemented, the "Original Agreement"), for the purpose and consideration
therein expressed, whereby Lenders became obligated to make loans to Borrower as
therein provided; and
WHEREAS, Borrower, Agent and Lenders desire to amend the Original
Agreement for the purposes described herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Original Agreement, in
consideration of the loans which may hereafter be made by Lenders to Borrower,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
Definitions and References
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ss. 1.1. Terms Defined in the Original Agreement. Unless the context
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otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Agreement shall have the same meanings whenever used in
this Amendment.
ss. 1.2. Other Defined Terms. Unless the context otherwise requires,
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the following terms when used in this Amendment shall have the meanings assigned
to them in this. 1.2.
"Amendment" means this Fourth Amendment to Credit Agreement.
"Credit Agreement" means the Original Agreement as amended
hereby.
ARTICLE II.
Amendment to Original Agreement
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ss. 2.1. Defined Terms. The following definitions in Section 1.1 of the
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Original Agreement are hereby amended in their entirety to read as follows:
'Evaluation Date' means each of the following:
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(a) Each date which either Borrower or Lender, at their
respective options, specifies as a date as of which the Borrowing Base
is to be redetermined, provided that each such date must be the first
or last date of a current calendar month; provided that neither
Borrower nor Lender shall be entitled to request more than one such
redetermination during the period between any consecutive Evaluation
Dates described in subsection (b) of this definition; and
(b) March 1 and September 1 of each year." "'Eurodollar
Margin' means ------------
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(a) during the Tranche A Revolving Period with respect to each
Eurodollar Loan:
(i) when the Debt to Capitalization Ratio in effect
hereunder is less than 0.30 to 1.0, 1.00%, or
(ii) when the Debt to Capitalization Ratio in effect
hereunder is greater than or equal to 0.30 to 1.0 but less
than 0.40 to 1.0, 1.25%, or
(iii) when the Debt to Capitalization Ratio in effect
hereunder is greater than or equal to 0.40 to 1.0 but less
than 0.5 to 1.0, 1.375%, or
(iv) when the Debt to Capitalization Ratio in effect
hereunder is greater than or equal to 0.50 to 1.0, 1.625%; and
(b) after the Tranche A Revolving Period with respect to each
Eurodollar Loan:
(i) when the Debt to Capitalization Ratio in effect
hereunder is less than 0.30 to 1.0, 1.125%, or
(ii) when the Debt to Capitalization Ratio in effect
hereunder is greater than or equal to 0.30 to 1.0 but less
than 0.40 to 1.0, 1.375%, or
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(iii) when the Debt to Capitalization Ratio in effect
hereunder is greater than or equal to 0.40 to 1.0 but less
than 0.5 to 1.0, 1.625%, or
(iv) when the Debt to Capitalization Ratio in effect
hereunder is greater than or equal to 0.50 to 1.0, 1.875%."
"'Loan Documents' means this Agreement, the Notes, the
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Security Documents, the Letters of Credit, the LC Applications, and all
other agreements, certificates, documents, instruments and writings at
any time delivered in connection herewith or therewith (exclusive of
term sheets and commitment letters)."
"'Oil and Gas Properties' means those oil and gas properties
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and related interests, whether now owned or hereafter acquired by any
of the Restricted Persons, but only to the extent included in the most
recent reserve report delivered pursuant to paragraph 2.8(b)."
ss. 2.2. Permitted Investments. Clause (b) of the definition of
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Permitted Investments in Section 1.1 of the Original Agreement which reads
"(b) Investments by Borrower in any of its wholly owned Subsidiaries,"
is hereby amended in to read as follows:
"(b) Investments by Borrower in any of its wholly owned Subsidiaries
which are Guarantors,"
ss. 2.3. Additional Definitions. The following definitions of
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"Collateral", "Guarantor", "Security Documents" and "Senior Convertible Notes"
are hereby added to Section 1.1 of the Original Agreement to read as follows:
"'Collateral' means all property of any kind which is subject
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to a Lien in favor of Lenders (or in favor of Agent for the benefit of
Lenders) or which, under the terms of any Security Document, is
purported to be subject to such a Lien."
"'Guarantor' means any Subsidiary of Borrower which now or
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hereafter executes and delivers a guaranty to Agent pursuant to Section
6.19."
"'Mortgaged Properties' means the Oil and Gas Properties that
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are mortgaged to Agent under the Security Documents."
"'Security Documents' means the security agreements, deeds of
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trust, mortgages, chattel mortgages, pledges, guaranties, financing
statements, continuation statements, extension agreements and other
agreements or instruments now, heretofore, or hereafter delivered by
any Restricted Person to Agent in connection with this Agreement or any
transaction contemplated hereby to secure or guarantee the payment of
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any part of the Obligations or the performance of any Restricted
Person's other duties and obligations under the Loan Documents."
"'Senior Convertible Notes' means those certain 5.75% Senior
--------------------------
Convertible Notes issued by Borrower pursuant to the Offering
Memorandum from Borrower initially circulated on March 6, 2002, in the
aggregate principal amount of up to $115,000,000, due in March 2022, as
amended, modified, supplemented, or restated from time to time."
"Senior Convertible Note Documents' means the Senior
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Convertible Notes, the Indenture pursuant to which the Convertible
Senior Notes are issued, and any other documents or instruments which
govern the Senior Convertible Notes."
ss. 2.4. Engineering Reports. Section 2.8(b) of the Original Agreement
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is hereby amended in its entirety to read as follows:
"(b) Engineering Reports.
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(i) No later than March 1 of each year that this
Agreement is in effect, commencing March 1, 1999, Borrower
shall submit to each Lender, in a format and using the pricing
and cost assumptions and discount factors required by the
Securities and Exchange Commission, a report, prepared by a
qualified independent engineer acceptable to Agent, setting
forth, as of December 31 of the immediately preceding year,
all of the revenues (and the future volumes of production to
be derived therefrom) attributable to all proved Oil and Gas
Properties owned by Borrower as of such date.
(ii) No later than September 1 of each year that this
Agreement is in effect, commencing September 1, 2002, Borrower
shall submit to each Lender, in a format and using the pricing
and cost assumptions and discount factors required by the
Securities and Exchange Commission, a supplement to the most
recent report delivered pursuant to subsection (ii)
immediately above, prepared by an in-house engineer of
Borrower acceptable to Agent in its reasonable judgment,
setting forth, as of June 30 of the same year, all of the
revenues (and the future volumes of production to be derived
therefrom) attributable to all proved Oil and Gas Properties
owned by Borrower as of such date.
ss. 2.5. Commitment Fee. Section 2.5(b) of the Original Agreement is
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hereby deleted in its entirety and replaced with the following:
(b) Tranche A Loan Commitment Fee. In consideration of
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Lenders' commitment to enter into this Agreement and to advance funds
to Borrower as Tranche A Loans, Borrower will pay to Agent, for pro
rata distribution to each Lender in accordance with its Percentage
Share, a commitment fee determined on a daily basis by applying the
Tranche A Commitment Fee Rate to such Lender's Percentage Share of the
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unused portion of the Tranche A Borrowing Base on each day during the
Tranche A Revolving Period, determined for each such day by deducting
from the amount of the Tranche A Borrowing Base at the end of such day
the Tranche A Facility Usage. Promptly at the end of each Fiscal
Quarter and at the end of the Tranche A Revolving Period, Agent shall
calculate the commitment fee then due and shall notify Borrower
thereof. Borrower shall pay such commitment fee to Agent within five
Business Days after receiving such notice. As used in this section,
"Tranche A Commitment Fee Rate" means:
(i) when the Debt to Capitalization Ratio in effect
hereunder is less than 0.30 to 1.0, .35%, or
(ii) when the Debt to Capitalization Ratio in effect
hereunder is greater than or equal to 0.30 to 1.0 but less
than 0.40 to 1.0, .40%, or
(iii) when the Debt to Capitalization Ratio in effect
hereunder is greater than or equal to 0.40 to 1.0 but less
than 0.5 to 1.0, .45%, or
(iv) when the Debt to Capitalization Ratio in effect
hereunder is greater than or equal to 0.50 to 1.0, .50%."
ss. 2.6. Regularly Scheduled Payments of Principal of Tranche A Note.
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Section 2.7(c) of the Original Agreement is hereby deleted in its entirety and
replaced with the following:
"(c) Regularly Scheduled Payments of Principal of Tranche A
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Note. The principal of the Tranche A Note shall be due and payable in
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fourteen (14) quarterly installments, each of which shall be equal to
the greater of (i) one-fourteenth (1/14) of the aggregate unpaid
principal balance of the Tranche A Note at the end of the Tranche A
Revolving Period or (ii) sixty percent (60%) of the Net Oil and Gas
Revenues during the applicable Accounting Quarter, and shall be due and
payable on the last day of each Fiscal Quarter, beginning September 30,
2003 and continuing regularly thereafter until the Tranche A Maturity
Date, at which time the unpaid principal balance of the Tranche A Note
and all interest accrued thereon shall be due and payable in full."
ss. 2.7. Provisions Concerning Collateral and Guaranty of Subsidiaries.
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Sections 6.15, 6.16, 6.17, 6.18, 6.19 and 6.20 are hereby added to the Original
Agreement immediately after Section 6.14 to provide as follows:
"Section 6.15. Agreement to Deliver Security Documents.
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Borrower agrees to deliver and to cause each other Restricted Person to
deliver to secure the Obligations, deeds of trust, mortgages, chattel
mortgages, security agreements, financing statements and other Security
Documents in form and substance satisfactory to Agent for the purpose
of granting, confirming, and perfecting first and prior liens or
security interests in Oil and Gas Properties to which are attributed
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80% of the total value of the Oil and Gas Properties as determined by
Agent after consultation with Borrower and in all personal property of
the Restricted Persons, including but not limited to the stock of all
of Borrower's Subsidiaries, in each case no later than thirty (30) days
after the issuance of the Senior Convertible Notes.
Section 6.16. Title Review. Borrower agrees that Agent's
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counsel shall review the lease files for the Oil and Gas Properties and
existing title reports and title opinions covering the properties
subject to the Security Documents. Based upon such review and in order
to confirm title to the Oil and Gas Properties, Agent may request, and
Borrower agrees to deliver, such additional favorable reports and/or
title opinions which Majority Lenders determine in their reasonable
judgment are necessary from legal counsel acceptable to Agent with
respect to any Oil and Gas Properties designated by Agent, based upon
title examinations to dates acceptable to Agent and stating that a
Restricted Person has good and defensible title to such Oil and Gas
Properties, free and clear of all Liens other than Permitted Liens, and
covering such other matters which Majority Lenders determine in their
reasonable judgment are necessary.
Section 6.17. Perfection and Protection of Security Interests
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and Liens. Borrower will from time to time deliver, and will cause each
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other Related Person from time to time to deliver, to Agent any
authorizations to file financing statements, extension agreements and
other documents, properly completed and executed (and acknowledged when
required) by Related Persons in form and substance satisfactory to
Agent, which Agent requests for the purpose of perfecting, confirming,
or protecting any Liens or other rights in Collateral securing any
Obligations.
Section 6.18. Production Proceeds. Notwithstanding that, by
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the terms of the various Security Documents, Restricted Persons are and
will be assigning to Agent and Lenders all of the "Production Proceeds"
(as defined therein) accruing to the property covered thereby, so long
as no Default has occurred and is continuing Restricted Persons may
continue to receive from the purchasers of production all such
Production Proceeds, subject, however, to the Liens created under the
Security Documents, which Liens are hereby affirmed and ratified. Upon
the occurrence and during the continuance of a Default, Agent and
Lenders may exercise all rights and remedies granted under the Security
Documents, including the right to obtain possession of all Production
Proceeds then held by Restricted Persons or to receive directly from
the purchasers of production all other Production Proceeds. In no case
shall any failure, whether purposed or inadvertent, by Agent or Lenders
to collect directly any such Production Proceeds constitute in any way
a waiver, remission or release of any of their rights under the
Security Documents, nor shall any release of any Production Proceeds by
Agent or Lenders to Restricted Persons constitute a waiver, remission,
or release of any other Production Proceeds or of any rights of Agent
or Lenders to collect other Production Proceeds thereafter.
Section 6.19. Guaranties of Borrower's Subsidiaries. Each
-------------------------------------
Subsidiary of Borrower shall, promptly upon request by Agent, execute
and deliver to Agent an absolute and unconditional guaranty of the
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timely repayment of the Obligations and the due and punctual
performance of the obligations of Borrower hereunder, which guaranty
shall be satisfactory to Agent in form and substance. Borrower will
cause each of its Subsidiaries to deliver to Agent, simultaneously with
its delivery of any Security Document to Agent, written evidence
satisfactory to Agent and its counsel that such Subsidiary has taken
all corporate or partnership action necessary to duly approve and
authorize its execution, delivery and performance of such Security
Document and any other documents which it is required to execute.
Section 6.20. Maintenance of Liens on Eighty Percent of Oil
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and Gas Properties. The Mortgaged Properties shall constitute at least
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eighty percent (80%) of the total value of the Oil and Gas Properties.
Within thirty (30) days following each Determination Date, Restricted
Persons will execute and deliver documentation in form and substance
satisfactory to Agent, granting to Agent first perfected Liens on and
in Oil and Gas Properties that are not then part of the Mortgaged
Properties, sufficient to cause the Mortgaged Properties to constitute
eighty percent (80%) of the total value of the Oil and Gas Properties
directly owned by Restricted Persons. In addition, Borrower will
furnish to Agent title due diligence in form and substance satisfactory
to Agent and will furnish all other documents and information relating
to such properties as Agent may reasonably request."
ss. 2.8. Indebtedness. Section 7.1 of the Original Agreement is hereby
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amended by deleting the period at the end of subsection 7.1(h) and substituting
therefor "; and" and adding the following subsection (i) immediately thereafter
to read as follows:
"(i) Indebtedness of Borrower in an original principal amount
not to exceed $115,000,000 evidenced by the Senior Convertible Notes,
provided that neither the Senior Convertible Notes nor any other Senior
Convertible Note Document may be modified except as expressly permitted
pursuant to Section 8.1(p)."
ss. 2.9. Limitation on Liens. Section 7.2 of the Original Agreement is
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hereby deleted in its entirety and replaced with the following:
"Section 7.2. Limitation on Liens. No Restricted Person will
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create, assume or permit to exist any Lien upon any of the Oil and Gas
Properties included in the Aggregate Borrowing Base except liens for
taxes not delinquent or being contested in good faith and by
appropriate proceedings and for which adequate reserves have been set
aside on Borrower's books; operator's, mechanic's, workmen's,
materialmen's and other like liens arising in the ordinary course of
business in respect of obligations not overdue or which are being
contested in good faith and by appropriate proceedings and for which
adequate reserves have been set aside on Borrower's books."
ss. 2.10. Negative Covenants. Sections 7.12, 7.13 and 7.14 are hereby
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added to the Original Agreement immediately after Section 7.11 to provide as
follows:
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"Section 7.12. Prohibited Contracts. No Restricted Person will
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amend or permit any amendment to any contract or lease which releases,
qualifies, limits, makes contingent or otherwise detrimentally affects
the rights and benefits of Agent or any Lender under or acquired
pursuant to any Security Documents in any material respect.
Section 7.13. Limitation on Prepayments on Senior Convertible
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Notes. No Restricted Person will purchase, repurchase, defease or make
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any prepayments on or with respect to the Senior Convertible Notes.
Section 7.14. Certain Contracts. Except as expressly provided
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for in the Loan Documents, no Restricted Person will, directly or
indirectly, enter into, create, or otherwise allow to exist any
contract or other consensual restriction on the ability of any
Restricted Person to (i) pay dividends or make other distributions to
Borrower, (ii) redeem equity interests held in it by Borrower, (iii)
repay any of its assets to Borrower, and (iv) pledge its assets or
properties to Agent or any Lender."
ss. 2.11. Events of Default. Section 8.1 of the Original Agreement is
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hereby amended as follows:
(a) by deleting the "and" at the end of subsection 8.1(l);
(b) by deleting the period at the end of subsection 8.1(m) and
substituting therefor ";"; and
(c) by adding the following subsections (n), (o) and (p)
immediately after Subsection 8.1(m) to read as follows:
"(n) Any Restricted Person fails to deliver to Agent
any the Security Document as required pursuant to Section 6.15
or Section 6.19;
(o) Borrower fails to duly observe, perform or comply
with any covenant, agreement, or provision of any Senior
Convertible Note Document which has not been waived in
accordance with the Senior Convertible Note Documents and such
failure is not remedied within the applicable period of grace
(if any) provided therein; and
(p) Without the express prior written consent of
Majority Lenders, Borrower amends or modifies any Senior
Convertible Note Document in a manner which requires the
consent of all or the holders of a majority of the principal
of the Senior Convertible Notes."
ss. 2.12. Amendments. The provision in the last sentence of Section
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2.10 of the Original Agreement which currently reads:
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"(6) release Borrower from its obligation to pay such Lender's
Note."
is hereby deleted and replaced with the following:
"(6) release Borrower from its obligation to pay such Lender's
Note or any Guarantor from its guaranty of such payment."
ARTICLE III.
Conditions of Effectiveness
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ss. 3.1. Effective Date. This Amendment shall become effective as of
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the date first above written when and only when:
(a) Agent shall have received all of the following, at Agent's
office, duly executed and delivered and in form and substance
satisfactory to Agent, all of the following:
(i) this Amendment;
(ii) a certificate of the Secretary of Borrower dated
the date of this Amendment certifying: (1) that the
resolutions attached to that certain Omnibus Certificate dated
as of June 30, 1998 (the "Original Certificate") authorize the
execution, delivery and performance of this Amendment by
Borrower; (2) that the names and true signatures of the
officers of the Borrower attached to the Original Certificate
are authorized to sign this Amendment; and (3) that all of the
representations and warranties set forth in Article IV hereof
are true and correct at and as of the time of such
effectiveness;
(iii) A favorable opinion of counsel for Restricted
Persons as to the organization of Borrower, the due
authorization, execution and delivery of this Amendment and
the enforceability of the Credit Agreement, as amended by this
Amendment, in form and substance acceptable to Agent;
(iv) such other supporting documents as Agent may
reasonably request; and
(b) Borrower shall have paid, in connection with such Loan
Documents, all fees and reimbursements to be paid to Agent pursuant to
any Loan Documents, or otherwise due Agent and including fees and
disbursements of Agent's attorneys; and
(c) the Senior Convertible Notes have been issued.
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ARTICLE IV.
Representations and Warranties
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ss. 4.1. Representations and Warranties of Borrower. In order to induce
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each Lender to enter into this Amendment, Borrower represents and warrants to
each Lender that:
(a) Except as set forth in the Disclosure Schedule attached
hereto as Exhibit A, the representations and warranties contained in
Article V of the Original Agreement are true and correct at and as of
the time of the effectiveness hereof.
(b) Borrower has duly taken all action necessary to authorize
the execution and delivery by it of this Amendment and to authorize the
consummation of the transactions contemplated hereby and the
performance of its obligations hereunder. Borrower is duly authorized
to borrow funds under the Credit Agreement.
(c) The execution and delivery by Borrower of this Amendment,
the performance by Borrower of its obligations hereunder and the
consummation of the transactions contemplated hereby do not and will
not (i) conflict with any provision of (1) any Law, (2) the
organizational documents of Borrower, or (3) any agreement, judgment,
license, order or permit applicable to or binding upon Borrower, (ii)
result in the acceleration of any Indebtedness owed by Borrower, or
(iii) result in or require the creation of any Lien upon any assets of
properties of Borrower. Except as expressly contemplated in the Loan
Documents no consent, approval, authorization or order of, and no
notice to or filing with, and Tribunal or third party is required in
connection with the execution, delivery or performance by Borrower of
this Amendment or to consummate any transactions contemplated hereby.
(d) When duly executed and delivered, each of this Amendment
and the Credit Agreement will be a legal, valid and binding obligation
of Borrower, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency or similar Laws of
general application relating to the enforcement of creditors' rights.
(e) The audited annual Consolidated financial statements of
Borrower dated as of December 31, 2000, and the unaudited quarterly
Consolidated financial statements of Borrower dated as of September 30,
2001, fairly present Borrower's Consolidated financial position at such
dates and the Consolidated results of Borrower's operations and
Borrower's Consolidated cash flows for the periods ending on such dates
for Borrower. Copies of such financial statements have heretofore been
delivered to each Lender. Since such dates no Material Adverse Change
has occurred.
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ARTICLE V.
Miscellaneous
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ss. 5.1. Ratification of Agreements. The Original Agreement as hereby
--------------------------
amended is hereby ratified and confirmed in all respects. The Loan Documents, as
they may be amended or affected hereby, are hereby ratified and confirmed in all
respects. Any reference to the Credit Agreement in any Loan Document shall be
deemed to be a reference to the Original Agreement as hereby amended. The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
Lenders under the Credit Agreement, the Notes, or any other Loan Document nor
constitute a waiver of any provision of the Credit Agreement, the Notes or any
other Loan Document.
ss. 5.2. Survival of Agreements. All of Borrower's representations,
----------------------
warranties, covenants and agreements herein shall survive the execution and
delivery of this Amendment and the performance hereof, including the making or
granting of the Loans, and shall further survive until all of the Obligations
are paid in full to each Lender and all of Lender Parties' obligations to
Borrower are terminated. All statements and agreements contained in any
certificate or instrument delivered by Borrower hereunder or under the Credit
Agreement to any Lender shall be deemed representations and warranties by
Borrower or agreements and covenants of Borrower under this Amendment and under
the Credit Agreement.
ss. 5.3. Loan Documents. This Amendment is a Loan Document, and all
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provisions in the Credit Agreement pertaining to Loan Documents apply hereto.
ss. 5.4. Governing Law. This Amendment shall be deemed a contract and
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instrument made under the laws of the State of Colorado and shall be construed
and enforced in accordance with and governed by the laws of the State of
Colorado and the laws of the United States of America, without regard to the
principles of conflicts of law.
ss. 5.5. Counterparts. This Amendment may be separately executed in any
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number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to constitute one and the same
Amendment.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
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IN WITNESS WHEREOF, this Amendment is executed as of the date first
above written.
ST. MARY LAND & EXPLORATION COMPANY
By: /s/ MARK HELLERSTEIN
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Name: Mark Hellerstein
---------------------------------
Title: President and CEO
---------------------------------
BANK OF AMERICA, N.A.
Agent, LC Issuer and Lender
By: /s/ RICHARD L. STEIN
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Name: Richard L. Stein
Title:Principal
COMERICA BANK-TEXAS
a Lender
By: /s/ THOMAS G. RAJAN
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Name: Thomas G. Rajan
Title:Vice President
WELLS FARGO BANK, N.A., formerly known as
Wells Fargo Bank West, N.A.,
a Lender
By: /s/ KAREN L. ROGERS
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Name: Karen L. Rogers
Title:Vice President