AMENDED AND RESTATED CREDIT
AGREEMENT
RESOLUTE ANETH, LLC,
as Borrower
WACHOVIA BANK, NATIONAL
ASSOCIATION,
as Administrative Agent
CITIGROUP GLOBAL MARKETS
INC.,
as Syndication Agent
DEUTSCHE BANK SECURITIES, INC.,
FORTIS CAPITAL CORP. AND
U.S. BANK NATIONAL ASSOCIATION,
as Co-Documentation Agents
THIS FIRST
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
“ First Amendment ”), dated effective as
of June 27, 2007, is by and among Resolute Aneth, LLC, a
Delaware limited liability company (the “
Borrower ”), Resolute Holdings Sub, LLC, a
Delaware limited liability company and certain of its subsidiaries
(collectively, the “ Guarantors ”),
Wachovia Bank, National Association, as Administrative Agent (the
“ Administrative Agent ”), Citigroup
Global Markets Inc., as Syndication Agent (the “
Syndication Agent ”) and Deutsche Bank
Securities, Inc., Fortis Capital Corp. and U.S. Bank National
Association, as Co-Documentation Agents, (the “
Co-Documentation Agents ”) and the other
Lenders party hereto (the “ Lenders
”).
WHEREAS ,
the Borrower, the Guarantors, the Administrative Agent and the
other lenders party thereto entered into that certain Amended and
Restated Credit Agreement, dated as of April 14, 2006 (the
“ Credit Agreement ”);
WHEREAS ,
the Borrower has requested that the Administrative Agent and the
Majority Lenders amend certain provisions of the Credit Agreement
to, among other things, (i) permit the increase of the amount
of the Second Lien Facility, (ii) adjust certain covenant
levels, (iii) provide for a dividend of up to $100,000,000 and
(iv) add a swingline facility;
WHEREAS,
subject to the satisfaction of the conditions set forth herein, the
Administrative Agent and the Lenders are willing to amend the
Credit Agreement and to such other actions as provided
herein.
NOW,
THEREFORE , in consideration of the premises and the mutual
covenants contained herein and in the Credit Agreement, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
Each
capitalized term used in this First Amendment and not defined
herein shall have the meaning assigned to such term in the Credit
Agreement.
Section 2.01
Amendments to Section 1.02 of the Credit Agreement
.
(a) Section 1.02
of the Credit Agreement is hereby amended by adding the following
new definitions in their proper alphabetical order:
“ First
Amendment ” means that certain First Amendment to Amended
and Restated Credit Agreement, dated as of June 27, 2007,
among the Borrower, the Administrative Agent and the other Lenders
party thereto.
“
Intercreditor Agreement ” means the Intercreditor
Agreement, dated as of June 27, 2007 among the Borrower, the
Administrative Agent and the administrative agent for the lenders
under the Second Lien Facility, as the same may, from time to time,
be amended, modified, supplemented or restated as permitted by the
terms of this Agreement.
“
Loans ” means the loans made by the Lenders to the
Borrower pursuant to this Agreement, including any Swingline
Loans.
“ Second
Lien Facility ” means the credit facility represented by
that certain Amended and Restated Second Lien Credit Agreement,
dated as of June 27, 2007 among the Borrower, the Guarantors,
Citicorp USA, Inc., as administrative agent and the other agents
and lenders party thereto, as the same may, from time to time, be
amended, modified, supplemented or restated in accordance with the
terms of the Intercreditor Agreement.
“ Second
Lien Loan Documents ” mean the Second Lien Facility, the
notes, and the security instruments related thereto.
“
Swingline Exposure ” means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time.
The Swingline Exposure of any Lender at any time shall be its
Applicable Percentage of the total Swingline Exposure at such
time.
“
Swingline Lender ” means Wachovia Bank, National
Association, in its capacity as lender of Swingline Loans
hereunder.
“
Swingline Loan ” means a Loan made pursuant to
Section 2.09.
(b) The
definition of “Agreement” in Section 1.02 of the
Credit Agreement is hereby amended by deleting it in its entirety
and inserting the following in lieu thereof:
“
Agreement ” means this Credit Agreement, as amended by
the First Amendment, as the same may from time to time be amended,
modified, supplemented or restated.
Section 2.02
Amendment to Section 2.03 of the Credit Agreement . The
first sentence of Section 2.03 of the Credit Agreement is
hereby amended by deleting it in its entirety and inserting the
following in lieu thereof:
“To request
a Borrowing, the Borrower shall notify the Administrative Agent of
such request by telephone or by written Borrowing Request in
substantially the form of Exhibit B and signed by the
Borrower (a “ written Borrowing Request ”):
(i) in the case of a Eurodollar Borrowing, not later
than
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2:00 p.m., New
York, New York time, three Business Days before the date of the
proposed Borrowing or (ii) in the case of an ABR Borrowing,
not later than 2:00 p.m., New York, New York time, on the Business
Day of the proposed Borrowing; provided that no such notice
shall be required for any deemed request of an ABR Borrowing to
finance the reimbursement of an LC Disbursement as provided in
Section 2.08(e).”
Section 2.03
Amendment to Section 2.05(a) of the Credit Agreement .
Section 2.05(a) of the Credit Agreement is hereby amended by
deleting it in its entirety and inserting the following in lieu
thereof:
“(a)
Funding by Lenders . Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer
of immediately available funds by 2:00 p.m., New York, New York
time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make such Loans available to the Borrower
by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent in
New York, New York and designated by the Borrower in the applicable
Borrowing Request; provided that ABR Loans made to finance
the reimbursement of an LC Disbursement as provided in
Section 2.08(e) shall be remitted by the Administrative Agent
to the Issuing Bank that made such LC
Disbursement.”
Section 2.04
Amendment to Section 2.08(e) of the Credit Agreement .
The first sentence of Section 2.08(e) of the Credit Agreement
is hereby amended by deleting it in its entirety and inserting the
following in lieu thereof:
“(e)
Reimbursement . If any Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit issued by such
Issuing Bank, the Borrower shall reimburse such LC Disbursement by
paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 2:00 p.m., New York, New York time, on
the date that such LC Disbursement is made, if the Borrower shall
have received notice of such LC Disbursement prior to 12:00 noon,
New York, New York time, on such date, or, if such notice has not
been received by the Borrower prior to such time on such date, then
not later than 2:00 p.m., New York, New York time, on the Business
Day immediately following the day that the Borrower receives such
notice; provided that if such LC Disbursement is not less
than $1,000,000, the Borrower shall, subject to the conditions to
Borrowing set forth herein, be deemed to have requested, and the
Borrower does hereby request under such circumstances, that such
payment be financed with an ABR Borrowing in an equivalent amount
and, to the extent so financed, the Borrower’s obligation to
make such payment shall be discharged and replaced by the resulting
ABR Borrowing.”
Section 2.05
Addition of Section 2.09 to the Credit Agreement . The
following Section 2.09 is hereby added to the Credit
Agreement:
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“
Swingline Loans . (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans to the Borrower from time to time during the
Availability Period, in an aggregate principal amount at any time
outstanding that will not result in (i) the aggregate
principal amount of outstanding Swingline Loans exceeding
$10,000,000 or (ii) the total Credit Exposures exceeding the
total Commitments; provided that the Swingline Lender shall
not be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. The Borrower shall pay to the Swingline
Lender, for the account of each Lender, the outstanding aggregate
principal and accrued and unpaid interest under each Swingline Loan
no later than one (1) day following such Swingline Borrowing.
Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow
Swingline Loans.
(b) To request a
Swingline Loan, the Borrower shall notify the Administrative Agent
of such request by telephone (confirmed by telecopy), not later
than 2:00 p.m., New York, New York time, on the day of a proposed
Swingline Loan. Each such notice shall be irrevocable and shall
specify the requested date (which shall be a Business Day) and
amount of the requested Swingline Loan. The Administrative Agent
will promptly advise the Swingline Lender of any such notice
received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to
the general deposit account of the Borrower with the Swingline
Lender by 3:00 p.m., New York, New York time, on the requested date
of such Swingline Loan.
(c) The Swingline
Lender may by written notice given to the Administrative Agent not
later than 2:00 p.m., New York, New York time, on any Business Day
require the Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans outstanding. Such notice
shall specify the aggregate amount of Swingline Loans in which
Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Lender,
specifying in such notice such Lender’s Applicable Percentage
of such Swingline Loan or Loans. Each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above,
to promptly pay to the Administrative Agent, for the account of the
Swingline Lender, such Lender’s Applicable Percentage of such
Swingline Loan or Loans. Each Lender acknowledges and agrees that
its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall
not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or reduction or termination
of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.
Each Lender shall comply with its obligation under this paragraph
by wire transfer of immediately available funds, in the same manner
as provided in Section 2.05 with respect to Loans made by such
Lender (and Section 2.05 shall apply, mutatis
mutandis , to the payment obligations of the Lenders), and
the
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Administrative
Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Lenders. The Administrative Agent shall
notify the Borrower of any participation in any Swingline Loan
acquired pursuant to this paragraph, and thereafter payments in
respect of such Swingline Loan shall be made to the Administrative
Agent and not to the Swingline Lender. Any amounts received by the
Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations
therein shall be promptly remitted to the Administrative Agent; any
such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Lenders that shall have
made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear; provided that any
such payment so remitted shall be repaid to the Swingline Lender or
to the Administrative Agent, as applicable, if and to the extent
such payment is required to be refunded to the Borrower for any
reason. The purchase of participations in a Swingline Loan pursuant
to this paragraph shall not relieve the Borrower of any default in
the payment thereof. Notwithstanding the foregoing, a Lender shall
not have any obligation to acquire a participation in a Swingline
Loan pursuant to this paragraph if an Event of Default shall have
occurred and be continuing at the time such Swingline Loan was made
and such Lender shall have notified the Swingline Lender in
writing, at least one Business Day prior to the time such Swingline
Loan was made, that such Event of Default has occurred and that
such Lender will not acquire participations in Swingline Loans made
while such Event of Default is continuing.”
Section 2.06
Amendment to Section 3.04(b) of the Credit Agreement .
The first sentence of Section 3.04(b) of the Credit Agreement
is hereby amended by deleting it in its entirety and inserting the
following in lieu thereof:
“(b)
Notice and Terms of Optional Prepayment . The Borrower shall
notify the Administrative Agent by telephone (confirmed
by
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