EXHIBIT 4(d)
FOURTH AMENDMENT
TO
NOTE AGREEMENT
This FOURTH AMENDMENT TO NOTE AGREEMENT (this "Amendment") dated
as of December 31, 1993 is among SANTA FE ENERGY RESOURCES, INC., a
Delaware corporation (the "Company"), and the entities identified on
the signature pages hereof as the holders (the "Required Holders") of
at least 51% of the aggregate principal amount of the Company's senior
promissory notes (the "Notes") outstanding, which were issued in seven
series in the aggregate principal amount of $365,000,000 pursuant to
the Note Agreement, dated as of March 31, 1990, among the Company and
the original Purchasers of the Notes, as amended by the First
Amendment to Note Agreement dated as of November 1, 1990, the Second
Amendment to Note Agreement dated as of September 1, 1991 and the
Third Amendment to Note Agreement dated as of November 1, 1992 (as so
amended, the "Agreement"). All capitalized terms defined in the
Agreement and not otherwise defined herein shall have the same
meanings herein as in the Agreement.
PRELIMINARY STATEMENT
The Company and the Required Holders have agreed, upon the terms
and conditions specified herein, to amend the Agreement as hereinafter
set forth.
NOW THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, the Company and the
Required Holders hereby agree as follows:
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SECTION 1. AMENDMENT TO PARAGRAPH 5A OF THE AGREEMENT.
The final paragraph of Paragraph 5A is hereby amended by
inserting the following sentence immediately before the final sentence
of said paragraph:
"Together with each delivery of financial statements
required by clause (i) or (ii) above, the Company will
deliver to each holder a pro forma statement of operations
of the Company and its Restricted Subsidiaries for the same
fiscal period as such financial statements that assumes that
the impairments of oil and gas properties taken by the
Company and its Restricted Subsidiaries in the fourth
quarter of 1993 in the amount of up to $100 million as
reflected in the Company's consolidated financial statements
for the year ended December 31, 1993, shall not have
occurred and a calculation in reasonable detail showing the
determination of Consolidated Net Earnings and Unimpaired
Consolidated Net Earnings for such fiscal period."
SECTION 2. AMENDMENT TO PARAGRAPH 6A OF THE AGREEMENT.
Paragraph 6A is hereby amended by amending the definition of
Consolidated Net Earnings Available for Restricted Payments and
Restricted Investments contained in such Paragraph by replacing the
term "Consolidated Net Earnings" in each place where it appears in
such definition with the term "Unimpaired Consolidated Net Earnings".
SECTION 3. AMENDMENT TO PARAGRAPH 6B(1) OF THE AGREEMENT.
Paragraph 6B(1) is hereby amended by inserting the following phrase
before the comma at the end of clause (vi) of said Paragraph:
"and shall not secure any portion of the Company's or any
Restricted Subsidiary's Debt representing any advance (other
than advances with respect to the Adobe Debt) made to the
Company or any of its Restricted Subsidiaries, other than
advances the proceeds of which are paid solely to the Person
(or any successor or assignee of such Person) which is the
acquiree in such acquisition or that is providing such
construction, development or improvement".
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SECTION 4. AMENDMENTS TO PARAGRAPH 6B(2) OF THE AGREEMENT.
(a) Paragraph 6B(2) is hereby amended by inserting the
following phrase at the beginning of clause (iii)(c) of said
Paragraph:
"(1) for any such creation, incurrence or assumption
occurring prior to December 31, 1998, Priority Debt (other
than Existing Priority Debt) shall not exceed the lesser of
(A)(I) 40% of Consolidated Net Tangible Assets minus (II)
Existing Priority Debt and (B) 33% of Consolidated Net
Tangible Assets, and (2) for any such creation, incurrence
or assumption occurring on or after December 31, 1998,
Priority Debt shall not exceed 33% of Consolidated Net
Tangible Assets, and,".
(b) Paragraph 6B(2) is hereby further amended by inserting
the following phrase at the beginning of clause (iv)(c) of said
Paragraph:
"(1) for any such creation, incurrence or assumption
occurring prior to December 31, 1998, Priority Debt (other
than Existing Priority Debt) shall not exceed the lesser of
(A)(I) 40% of Consolidated Net Tangible Assets minus (II)
Existing Priority Debt and (B) 33% of Consolidated Net
Tangible Assets, and (2) for any such creation, incurrence
or assumption occurring on or after December 31, 1998,
Priority Debt shall not exceed 33% of Consolidated Net
Tangible Assets, and,".
SECTION 5. AMENDMENTS TO PARAGRAPH 10 OF THE AGREEMENT.
(a) Paragraph 10 is hereby amended by adding thereto in
alphabetical order the following definitions:
"ADOBE DEBT" at any time shall mean with respect to
the Debt of the Company incurred as of May 20, 1992, in
connection with the merger of Adobe Resources Corporation
into the Company, as such Debt may have been or hereafter
may be renewed, extended or otherwise modified, the maximum
principal amount of such Debt that can be outstanding at
such time, but only to the extent that such amount is equal
to or less than (i) $90,000,000, at any time during the
period from and including December 31, 1993, to and
including December 30, 1994, (ii) $72,000,000, at any time
during the period from and including December 31, 1994, to
and including December 30, 1995, (iii) $54,000,000, at any
time during the period from and including December 31, 1995,
to and including December 30, 1996, (iv) $36,000,000, at any
time during the period from and including December 31, 1996,
to and
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including December 30, 1997, (v) $18,000,000, at any time
during the period from and including December 31, 1997, to
and including December 30, 1998, and (vi) $0.00 at any time
thereafter.
"EXISTING PRIORITY DEBT" at any time shall mean, to
the extent that it is otherwise Priority Debt, an amount
equal to the sum of (i) the Adobe Debt at such time, (ii)
the outstanding principal amount of Debt under the Springing
Lien Agreement at such time, and (iii) the outstanding
principal amount of Debt under those certain Credit
Agreements of Petrolera Santa Fe S.A., dated as of June 25,
1991 and April 28, 1992, at such time.
"HADSON" shall mean Hadson Corporation, a Delaware
corporation, and any successor corporation thereto.
"HADSON STOCK" shall mean, to the extent held
continuously by the Company or any of its Restricted
Subsidiaries after the merger of SFER Pipeline, Inc. into
the Company, (i) any of the 2,080,000 shares of the Senior
Cumulative Preferred Stock, Series A, par value $.01 per
share, of Hadson and the 10,395,665 shares of the common
stock, par value $.01 per share of Hadson, acquired by the
Company or any of its Subsidiaries on or before January 31,
1994, (ii) any stock acquired by virtue of one or more stock
splits or recapitalizations involving such common stock or
Senior Cumulative Preferred Stock and not involving any
additional economic consideration on the part of the Company
or any of its Subsidiaries, and (iii) any dividend paid on
such common stock or Senior Cumulative Preferred Stock
solely in the capital stock of Hadson.
"PRIORITY DEBT" at any time shall mean an amount
equal to the sum of (without duplication) the amount of all
Special Debt outstanding at such time and the amount of all
Debt of the Company and its Restricted Subsidiaries
outstanding at such time that is secured by one or more
Liens permitted under clause 6B(1)(iv), (v), (vi), (vii),
(viii), (ix), (x), (xi) or (xii).
"UNIMPAIRED CONSOLIDATED NET EARNINGS" for any
period shall mean the amount of Consolidated Net Earnings
for such period except that with respect to the oil and gas
properties impairments taken by the Company and its
Restricted Subsidiaries in the fourth quarter of 1993 in the
amount of up to $100 million as reflected in the Company's
consolidated financial statements for the year ended
December 31, 1993:
(i) for any calculation of "Unimpaired Consolidated
Net Earnings" for any fiscal period of the Company and
its Restricted Subsidiaries ending on or after December
31, 1993,
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the net earnings of the Company and its Restricted
Subsidiaries shall not be reduced by the amount of such
oil and gas properties impairments; and
(ii) for any such calculation for any fiscal period
of the Company and its Restricted Subsidiaries ending on
or after December 31, 1993, the depreciation, depletion
and amortization expenses of the Company and its
Restricted Subsidiaries shall be calculated on a pro
forma basis as if such oil and gas properties
impairments had never occurred.
(b) Paragraph 10 is hereby further amended by deleting the
phrase "but not including in gross revenues any dividends,
distributions or other payments received by the Company and its
Restricted Subsidiaries from the Special Subsidiary" in its
entirety from the definition of "Consolidated Net Earnings" in
such Paragraph and replacing said phrase with the following
phrase:
"but not including in gross revenues any dividends,
distributions or other payments received by the Company
or any of its Restricted Subsidiaries in connection with
the Hadson Stock, unless received in the form of cash,
or any dividends, distributions or other payments
received by the Company or any of its Restricted
Subsidiaries from the Special Subsidiary".
(c) Paragraph 10 is hereby further amended by inserting the
following phrase at the end of clause (A)(5) of the definition of
"Consolidated Net Tangible Assets" in such paragraph immediately
prior to the period in such clause:
"(other than Restricted Investments in the capital stock
of Hadson)".
(d) Paragraph 10 is hereby further amended by deleting
clause (x) of the definition of "Restricted Investment" in such
Paragraph and replacing said clause with the following two
clauses:
"(x) Investments in the Hadson Stock, or
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(xi) Investments not otherwise permitted hereunder in an
aggregate principal amount not to exceed $10,000,000."
SECTION 6. CONDITIONS OF EFFECTIVENESS. This Amendment
shall become effective when, and only when the Company and the
Required Holders shall have executed a counterpart hereof and
delivered the same to the Company.
SECTION 7. REFERENCE TO THE AGREEMENT AND EFFECT ON THE
NOTES AND OTHER DOCUMENTS EXECUTED PURSUANT TO THE AGREEMENT.
(a) Upon the effectiveness of this Amendment, each reference
in the Agreement to "this Agreement," "hereunder," "herein,"
"hereof" or words of like import shall mean and be a reference to
the Agreement, as affected and amended hereby.
(b) Upon the effectiveness of this Amendment, each reference
in the Notes and the other documents and agreements delivered or
to be delivered pursuant to the Agreement shall mean and be a
reference to the Agreement, as affected and amended hereby.
(c) The Agreement, as amended and modified by the amendment
referred to above, shall remain in full force and effect and is
hereby ratified and confirmed.
SECTION 8. EXECUTION IN COUNTERPARTS. This Amendment may
be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same instrument.
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SECTION 9. GOVERNING LAW. THIS AMENDMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE
PARTIES SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF TEXAS AND THE
UNITED STATES OF AMERICA.
SECTION 10. HEADINGS. Section headings in this Amendment
are included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed effective as of the date first stated herein, by their
respective officers thereunto duly authorized.
SANTA FE ENERGY RESOURCES, INC.
By: MICHAEL J. ROSINSKI
Name: Michael J. Rosinski
Title: Vice President and
Chief Financial Officer
REQUIRED HOLDERS:
ALLSTATE INSURANCE COMPANY
By:
Name:
Title:
AMERICAN ENTERPRISE LIFE
INSURANCE COMPANY
By:
Name:
Title:
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AMERICAN GENERAL LIFE
INSURANCE COMPANY
By:
Name:
Title:
AMERICAN GENERAL LIFE
INSURANCE COMPANY OF
DELAWARE
By:
Name:
Title:
CENTRAL LIFE ASSURANCE
COMPANY
By:
Name:
Title:
COVENANT LIFE ASSURANCE
COMPANY
By: William Blair & Company,
Agent
By:
Name:
Title:
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EQUITABLE VARIABLE LIFE
INSURANCE COMPANY
By:
Name:
Title:
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By:
Name:
Title:
THE EQUITABLE OF COLORADO, INC.
By:
Name:
Title:
FARM BUREAU LIFE INSURANCE
COMPANY
By: RICHARD D. WARMING
Name: Richard D. Warming
Title: VP-Chief Investment
Officer
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FARM FAMILY LIFE INSURANCE
COMPANY
By:
Name:
Title:
FARM FAMILY MUTUAL INSURANCE
COMPANY
By:
Name:
Title:
FBL INSURANCE COMPANY
By: RICHARD D. WARMING
Name: Richard D. Warming
Title: VP-Chief Investment
Officer
GENERAL AMERICAN LIFE
INSURANCE COMPANY
By:
Name:
Title:
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GREAT-WEST LIFE & ANNUITY
INSURANCE COMPANY
By: DAVID SULLIVAN
Name: David Sullivan
Title: Vice President
Private Placement
Investments
By: WAYNE T. HOFFMANN
Name: Wayne T. Hoffmann
Title: Vice President
Private Placement
Investments
IDS LIFE INSURANCE COMPANY
By:
Name:
Title:
KANSAS PUBLIC EMPLOYEES
RETIREMENT SYSTEM
By: The Boston Safe Deposit
and Trust Company, Agent
By:
Name:
Title:
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KEYPORT LIFE INSURANCE CO.
By: Stein Roe & Farnham
Incorporated, as Agent
By: RICHARD A. HEGWOOD
Name: Richard A. Hegwood
Title: Vice President
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: RICHARD C. MORRISON
Name: Richard C. Morrison
Title: Vice President
MELLON SECURITY TRUST
By:
Name:
Title:
MERRIL LYNCH LIFE INSURANCE
COMPANY
By: DAVID M. DUNFORD
Name: David M. Dunford
Title: Senior Vice President
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MODERN WOODMEN OF AMERICAN
By:
Name:
Title:
THE MUTUAL BENEFIT LIFE
INSURANCE COMPANY
By:
Name:
Title:
OHIO CASUALTY INSURANCE
COMPANY
By:
Name:
Title:
OHIO LIFE INSURANCE COMPANY
By:
Name:
Title:
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PAN-AMERICAN LIFE INSURANCE
COMPANY
By:
Name:
Title:
PRINCIPAL MUTUAL LIFE
INSURANCE COMPANY
By: STEPHEN G. SKRIVANEK
Name: Stephen G. Skrivanek
Title: Counsel
By: CLINT WOODS
Name: Clint Woods
Title: Counsel
PROVIDENT LIFE AND ACCIDENT
INSURANCE COMPANY
By:
Name:
Title:
PROVIDENT NATIONAL ASSURANCE
COMPANY
By:
Name:
Title:
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THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: PruCapital Management,
Inc., Agent
By: STEVEN ARNOLD
Name: Steven Arnold
Title: Vice President
SECURITY MUTUAL LIFE INSURANCE
COMPANY OF NEW YORK
By:
Name:
Title:
SMA LIFE ASSURANCE COMPANY
By: SCOTT C. HYNEY
Name: Scott C. Hyney
Title: Assistant Treasurer
STATE MUTUAL LIFE ASSURANCE
COMPANY OF AMERICA
By: SCOTT C. HYNEY
Name: Scott C. Hyney
Title: Assistant Treasurer
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SUN LIFE ASSURANCE COMPANY OF
CANADA (U.S.)
By: L. BROCK THOMSON
Name: L. Brock Thomson
Title: Treasurer
SUN LIFE INSURANCE AND ANNUITY
COMPANY OF NEW YORK
By: L. BROCK THOMSON
Name: L. Brock Thomson
Title: Treasurer
THE TRAVELERS INDEMNITY
COMPANY
By: JOHN GILSENAN
Name: John Gilsenan
Title: 2nd Vice President
THE TRAVELERS INSURANCE
COMPANY
By: JOHN GILSENAN
Name: John Gilsenan
Title: 2nd Vice President
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UNITED OF OMAHA LIFE INSURANCE
COMPANY
By:
Name:
Title:
USG ANNUITY & LIFE COMPANY
By:
Name:
Title:
WEST AMERICAN INSURANCE
COMPANY
By:
Name:
Title:
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