EXHIBIT 10.12
Second Amendment to the Loan Agreement dated as of April 16, 2001 between Ascent
and Fortis Capital Corp.
(Fortis Logo)
April 16, 2002
Ascent Energy Inc.
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
XxXxxxxx, Xxxxx 00000
Re: Second Amendment to Loan Agreement
Gentlemen:
This Second Amendment to the Loan Agreement (the "Amendment") sets
forth the amended terms of the financing transaction by and among ASCENT ENERGY
INC., a Delaware corporation ("Borrower"), FORTIS CAPITAL CORP., a Connecticut
corporation as Agent ("Agent") and as a Lender, and the other Lenders.
WHEREAS, Borrower and Fortis Capital Corp., as Agent, entered into a
Loan Agreement dated as of July 27, 2001, as amended (the "Loan Agreement"); and
WHEREAS, the Borrower has requested that the Agent and the Lenders make
certain amendments to the Loan Agreement, and the Agent and the Lenders are
willing to do so subject to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. DEFINED TERMS. All capitalized terms used but not otherwise defined
in this Amendment shall have the meaning ascribed to them in the Loan Agreement.
Unless otherwise specified, all section references herein refer to sections of
the Loan Agreement.
2. AMENDMENTS TO LOAN AGREEMENT. The Loan Agreement is hereby amended
as follows:
2.1 Method of Calculating Financial Ratios
(a) Section 16(g) is amended to read as follows:
"(g) Total Debt to EBITDA. The Borrower
shall not, on a Consolidated basis, allow
its ratio of Debt to EBITDA to exceed: 5.0
to 1.0 measured as of the last day of any
Fiscal Quarter in 2001 and the first three
Fiscal Quarters of 2002; 4.5 to 1.0 measured
as of the last day of the last Fiscal
Quarter in 2002; and 4.0 to 1.0 measured as
of the last day of any Fiscal Quarter in
2003 or thereafter."
(b) Section 16(i) is amended to read as follows:
"(i) Method of Calculation. The financial
ratios set forth in Subsections 16(g) and
16(h) above shall be calculated for the
period of the last four consecutive Fiscal
Quarters preceding the date of
determination. In each case, if during any
relevant period, the Borrower or one of its
Restricted Subsidiaries has acquired or
acquires another Restricted Subsidiary or
has merged or merges with another Person,
such calculation shall be made on a pro
forma basis as if the acquisition or merger
had occurred on the first day of the
relevant period of four Fiscal Quarters in
question. For the avoidance of doubt, the
calculations made for the period of four
Fiscal Quarters following the acquisitions
of each of Pontotoc and Devo Holding
Company, LLC shall be made on a pro forma
basis
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as aforesaid taking into account the
consolidated financial statements of each of
the Borrower, Pontotoc and Devo Holding
Company LLC.
3. EFFECTIVENESS OF AMENDMENT.
(a) This Amendment shall be effective upon receipt by Agent
of:
(i) A Confirmation of Guaranty executed by Xxxxxx and
the Restricted Subsidiaries party to the Subsidiary
Guaranty;
(ii) An amendment fee equal to $25,000;
(iii) A compliance certificate executed by Borrower; and
(iv) An Incumbency Certificate executed by Borrower.
(b) Upon satisfaction of the conditions set forth at
subsection (a) above, this Amendment shall be effective as of the date
of the Loan Agreement, July 27, 2001.
4. RATIFICATIONS, REPRESENTATIONS AND WARRANTIES.
(a) The terms and provisions set forth in this Amendment shall
modify and supersede all inconsistent terms and provisions set forth in
the Loan Agreement and, except as expressly modified and superseded by
this Amendment, the terms and provisions of the Loan Agreement are
ratified and confirmed and shall continue in full force and effect. The
Borrower and Agent agree that the Loan Agreement and the Loan
Documents, as amended hereby, shall continue to be legal, valid,
binding and enforceable in accordance with their respective terms.
(b) In order to induce the Agent to enter into this Amendment,
the Borrower represents and warrants to the Agent that:
(i) The representations and warranties contained in
Section 11 of the Loan Agreement are true and correct in all
material respects at and as of the time of the effectiveness
hereof (except to the extent that such representations and
warranties related solely to an earlier date and except to the
extent that the facts upon which such
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representations are based have been changed by the
transactions contemplated by this Amendment).
(ii) Each Restricted Person is duly authorized to
execute and deliver each Loan Document to the extent a party
thereto and Borrower is and will continue to be duly
authorized to borrow and to perform its obligations under the
Loan Agreement as amended hereby. Each Restricted Person has
duly taken all action necessary to authorize the execution and
delivery of each Loan Document to which it is a party and to
authorize the performance of the obligations of each
Restricted Person thereunder.
5. BENEFITS. This Amendment shall be binding upon and inure to the
benefit of the Lenders and Borrower, and their respective successors and
assigns; provided, however, that Borrower may not, without the prior written
consent of the Lenders, assign any rights, powers, duties or obligations under
this Amendment, the Loan Agreement or any of the other Loan Documents.
6. CONSTRUCTION. This Amendment shall be governed by and construed in
accordance with the laws of the State of Texas.
7. INVALID PROVISIONS. If any provision of this Amendment is held to be
illegal, invalid or unenforceable under present or future laws, such provision
shall be fully severable and the remaining provisions of this Amendment shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance.
8. ENTIRE AGREEMENT. The Loan Agreement, as amended by this Amendment,
contains the entire agreement among the parties regarding the subject matter
hereof and supersedes all prior written and oral agreements and understandings
among the parties hereto regarding same.
9. REFERENCE TO LOAN AGREEMENT. The Loan Agreement and any and all
other agreements, documents or instruments now or hereafter executed and
delivered pursuant to the terms hereof or pursuant to the terms of the Loan
Agreement, as amended hereby, are hereby amended so that any reference in the
Loan Agreement to the Loan Agreement shall mean a reference to the Loan
Agreement as amended hereby.
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10. COUNTERPARTS. This Amendment may be separately executed in any
number of counterparts, each of which shall be an original, but all of which,
taken together, shall be deemed to constitute one and the same agreement.
If the foregoing correctly sets forth our mutual agreement, please so
acknowledge by signing and returning this Amendment to the undersigned.
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Very truly yours,
FORTIS CAPITAL CORP., AS AGENT AND LENDER
By:
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Name:
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Title:
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By:
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Name:
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Title:
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ACCEPTED as of the date
first written above.
BORROWER:
ASCENT ENERGY INC.
By:
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Xxxxxxx Xxxxx, President
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COMPLIANCE CERTIFICATE
April 16, 2002
Reference is made to that certain Loan Agreement dated as of July 27,
2001 between Ascent Energy Inc. ("Borrower") and Fortis Capital Corp ("Agent")
as amended by the Second Amendment to the Loan Agreement dated the date hereof
(the "Loan Agreement"). Terms which are defined in the Loan Agreement and which
are used but not defined herein shall have the meanings given them in the Loan
Agreement. The undersigned, Xxxxxxx Xxxxxx, Borrower's president, hereby
certifies in the name, and on behalf, of Borrower that Borrower has made a
thorough inquiry into all matters certified herein and based upon such inquiry,
does hereby further certify that:
1. All representations and warranties made by any Restricted Person in
any Loan document delivered on or before the date hereof (including, without
limitation, the representations and warranties contained in Section 4 of the
Amendment) are true in all material respects on and as of the date hereof
(except to the extent that such representations and warranties related solely to
an earlier date and except to the extent that the facts upon which such
representations are based have been changed by the transactions contemplated in
the Loan Agreement) as if such representations and warranties had been made as
of the date hereof.
2. No Event of Default exists on the date hereof.
3. Each Restricted Person has performed and complied with all
agreements and conditions required in the Loan Document to be performed or
complied with by it on or prior to the date hereof.
IN WITNESS WHEREOF, this instrument is executed by the undersigned as
of the date first above written.
ASCENT ENERGY INC.
By:
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Xxxxxxx Xxxxx, President
CONFIRMATION OF GUARANTY
Reference is made to the Loan Agreement dated July 27, 2001 between
FORTIS CAPITAL CORP. ("Agent") and ASCENT ENERGY INC. ("Borrower") (the "Loan
Agreement"). The undersigned Guarantor hereby confirms that its guaranty under
the Guaranty between the undersigned Guarantor and Agent continues in full force
and effect notwithstanding the Second Amendment to the Loan Agreement dated as
of April 16, 2002 between Agent, the Lenders and Borrower, which Second
Amendment to the Loan Agreement is hereby accepted and consented to by such
Guarantor. In accordance herewith, the aforesaid guaranty shall be deemed to
cover and secure the Obligations at any time due from Borrower to Agent pursuant
to the Loan Agreement as the latter has been amended and supplemented by the
Second Amendment to the Loan Agreement. This Confirmation of Guaranty shall be
governed by and construed in accordance with the laws of Texas.
Dated as of the 16th day of April, 2002.
XXXXXX PETROLEUM CORPORATION
By:
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Name: Xxxxxxx Xxxxxx
Title: President
ACCEPTED as of the date first
above written.
BORROWER:
ASCENT ENERGY INC.
By:
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Xxxxxxx Xxxxx, President
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INCUMBENCY CERTIFICATE
April 16, 2002
Reference is made to that certain Loan Agreement dated as of July 27,
2001 between Ascent Energy Inc. ("Borrower") and Fortis Capital Corp ("Agent")
as amended by the Second Amendment to the Loan Agreement dated the date hereof
(the "Loan Agreement"). Terms which are defined in the Loan Agreement and which
are used but not defined herein shall have the meanings given them in the Loan
Agreement. The undersigned, Borrower's Secretary, hereby certifies in the name,
and on the behalf, of Borrower that Xxxxxxx Xxxxxx is the duly elected,
qualified, and acting president of Borrower.
By:
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Xxxxx X. XxXxxxxx
Secretary
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