EXHIBIT 10.13
[FORTIS LOGO]
April 29, 2002
Ascent Energy, Inc.
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
XxXxxxxx, Xxxxx 00000
Re: Third Amendment to Loan Agreement
Gentlemen:
This Third 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 make certain
amendments to the Loan Agreement in order to enable the LC Issuer to issue
additional Letters of Credit on behalf of Borrower, 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
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 Commitments to Lend. The following sentence is added to
the end of Subsection 2(a).
"The Lenders shall have no obligation to make Loans
hereunder if, after giving effect such Loan, the aggregate
amount of outstanding Loans, plus the amount of existing LC
Obligations, plus the face amount of outstanding Special
Letters of Credit would exceed $50,000,000."
2.2 Letters of Credit. Subsection (g) is added to Section 7 as
follows:
"(g) Special LC Line
(i) In addition to Letters of Credit which
may be issued pursuant to Subsection (a) of this
Section 7, Borrower may request the Agent to arrange
for the issuance by the LC Issuer of one or more
standby letters of credit referred to herein as
"Special Letters of Credit" on the following terms:
(1) the aggregate face amount of
Special Letters of Credit which may be
issued hereunder is $5,000,000.00;
(2) the face amount of such Special
Letters of Credit shall not be limited by
the Borrowing Base and shall not be counted
towards Facility Usage;
(3) Special Letters of Credit may
only be used for purposes of supporting
Hedging Contracts entered into by the
Borrower as permitted hereunder and shall be
issued in favor of the counterparty to such
Hedging Contracts;
2
(4) Special Letters of Credit may
only be issued prior to April 29, 2003, and
the expiration date of any such Special
Letter of Credit shall be prior to April 29,
2003; and
(5) except as noted above, the
provisions of Subsections (a) through (f) of
this Section 7 shall apply to Special
Letters of Credit hereunder, except that the
fee payable under Subsection (d) shall be
two and one-half percent (2.50%) per annum."
2.3 Hedging Restrictions
(a) Section 16(n) is amended to read as follows:
"(n) Hedging Transactions.
(i) No Restricted Person will enter
into hedging transactions involving more
than 95% of such Restricted Person's
scheduled production for its proved,
developed, producing ("PDP") oil or gas
properties at any time during the next
twelve (12) months as determined by such
Restricted Person's most recent quarterly
report described in clause (ii) below.
(ii) The Borrower shall furnish to
Agent within fifteen (15) days following the
end of each calendar quarter a report (in a
form to be agreed upon) showing for each
Restricted Person (y) the scheduled
production for its PDP oil and gas
properties for the next twelve months, and
(z) the notional volumes under each
commodity hedging contract in place for the
next twelve months with respect to oil and
gas.
(iii) The report described in
clause (ii) above shall (x) show scheduled
production and the notional volumes for the
commodity hedging contracts for oil and
3
gas separately, (y) include a calculation of
the notional volumes under all commodity
hedging contracts as a percentage of
scheduled production for oil and gas
separately, and (z) be certified by an
officer of such Restricted Person attesting
to compliance with clause (i) above."
3. BORROWING BASE REDETERMINATION. Pursuant to Section 9 of the Loan
Agreement, effective as of the date hereof, and until redetermined pursuant to
Section 9 of the Loan Agreement, the Borrowing Base is $45,000,000.
4. EFFECTIVENESS OF AMENDMENT. This Amendment shall be effective upon
receipt by Agent of:
(a) A Confirmation of Guaranty executed by Xxxxxx and the
Restricted Subsidiaries party to the Subsidiary Guaranty;
(b) An amendment fee equal to $10,000.00;
(c) A Compliance Certificate executed by Borrower; and
(d) An Incumbency Certificate executed by Borrower.
5. 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
4
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 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.
6. 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.
7. CONSTRUCTION. This Amendment shall be governed by and construed in
accordance with the laws of the State of Texas.
8. 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.
9. 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.
10. 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
5
Loan Agreement to the Loan Agreement shall mean a reference to the Loan
Agreement as amended hereby.
11. 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.
Very truly yours,
FORTIS CAPITAL CORP., AS AGENT AND LENDER
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
ACCEPTED as of the date
first written above.
BORROWER:
ASCENT ENERGY, INC.
By:
----------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
6
COMPLIANCE CERTIFICATE
April 29, 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 5 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:
---------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
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 Third Amendment to the Loan Agreement dated as of
April 29, 2002 between Agent and Borrower, which Third 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 Third Amendment
to the Loan Agreement. This Confirmation of Guaranty shall be governed by and
construed in accordance with the laws of Texas.
Dated this 29th day of April, 2002.
XXXXXX PETROLEUM CORPORATION
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
ACCEPTED as of the date first
above written.
BORROWER:
ASCENT ENERGY, INC.
By:
-----------------------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
INCUMBENCY CERTIFICATE
April 29, 2001
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 Third 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:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
