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 SECOND
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
“ Second Amendment ”), dated effective as of
September 12, 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, as
amended by that certain First Amendment to Amended and Restated
Credit Agreement, dated June 27, 2007 (as the same may be
amended, modified, supplemented or restated from time to time, the
“ Credit Agreement ”);
WHEREAS ,
the Borrower has requested that the Administrative Agent and the
Majority Lenders amend the minimum interest coverage ratio and the
maximum leverage ratio covenants of the Credit
Agreement;
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 Second 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 definition in its proper alphabetical order:
“ Second
Amendment ” means that certain Second Amendment to
Amended and Restated Credit Agreement, dated as of
September 12, 2007, among the Borrower, the Administrative
Agent and the other Lenders party thereto.
(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 and further amended by the Second Amendment, as
the same may from time to time be amended, modified, supplemented
or restated.
Section 2.02
Amendment to Section 9.01 of the Credit Agreement
Sections 9.01(b) and (c) of the Credit Agreement are
hereby amended by deleting them in their entirety and inserting the
following in lieu thereof:
“(b)
Minimum Interest Coverage Ratio. The Loan Parties will not,
as of the last day of any fiscal quarter commencing with the
quarter ending September 30, 2007, permit the ratio of EBITDA
of Parent and its Consolidated Subsidiaries for the four quarter
period ending on such date to Interest Expense for the same period
to be less than 2.25:1.00 with respect to the periods ending on or
before June 30, 2008; 2.50:1.00 with respect to the period
commencing July 1, 2008 and ending on or before
September 30, 2008; and 2.75:1.00 for all periods commencing
October 1, 2008 and ending thereafter.
(c)
Maximum Leverage Ratio. The Loan Parties will not, at any
time, commencing with the quarter ending September 30, 2007,
permit the ratio of Funded Debt as of such time to EBITDA of Parent
and its Consolidated Subsidiaries for the four quarter period
ending on the last day of the immediately preceding fiscal quarter
for which financial statements have been provided pursuant to
Section 8.01(a) to be greater than 6.00:1.00 with respect to the
periods ending on or before September 30, 2007; with respect
to the period commencing October 1, 2007 and ending
December 31, 2007 to be greater than 5.50:1.00; with respect
to the period commencing January 1, 2008 and ending
March 31, 2008 to be greater than 5.25:1.00; with respect to
the period commencing April 1, 2008 and ending June 30,
2008 to be greater than 4.75:1.00; with respect to the period
commencing July 1, 2008 and ending September 30, 2008 to
be greater than 4.00:1.00; and with respect to the period
commencing October 1, 2008 and for all periods ending
thereafter to be greater than 3.75:1.00.”
ARTICLE III
Conditions Precedent
This Second
Amendment shall be subject to the satisfaction of the following
conditions precedent or concurrent, and after giving effect to this
Second Amendment:
3
(a) the
representations and warranties contained herein and in all other
Loan Documents shall be true and correct in all material respects
as of the date hereof, except for such representations and
warranties limited to an earlier date;
(b) no
Default shall have occurred and be continuing;
(c) no
Material Adverse Effect shall have occurred and be
continuing;
(d) the
Administrative Agent shall have received counterparts hereof duly
executed by the Borrower and each of the Lenders;
(e) all
costs, fees, expenses and other compensation contemplated by this
Second Amendment and the other Loan Documents, and for which
statements or invoices have been submitted to the Borrower shall
have been paid; and
(f) the
ratification of the Guaranty Agreement by the
Guarantors.
ARTICLE IV
Representations and Warranties
The Borrower
hereby represents and warrants to each Lender that:
(a) Each of
the representations and warranties made by the Borrower under the
Credit Agreement and each other Loan Document is true and correct
in all material respects on and as of the actual date of execution
of this Second Amendment by the Borrower, as if made on and as of
such date, except for any representations and warranties made as of
a specified date, which are true and correct in all material
respects as of such specified date.
(b) The
execution, delivery and performance by the Borrower of this Second
Amendment have been duly authorized by the Borrower.
(c) This
Second Amendment constitutes the legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in
accordance with its terms.
(d) The
execution, delivery and performance by the Borrower of this Second
Amendment (i) does not require any consent or approval of,
registration or filing with, or any other action by, any
Governmental Authority or any other third Person (including
shareholders or any class of directors, whether interested or
disinterested, of the Borrower or any other Person), nor is any
such consent, approval, registration, filing or other action
necessary for the validity or enfor
|
