SIXTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
RESOLUTE ANETH, LLC,
as Borrower,
WACHOVIA BANK, NATIONAL
ASSOCIATION,
as Administrative Agent,
WELLS FARGO BANK, NATIONAL
ASSOCIATION
and BMO CAPITAL MARKETS FINANCING, INC.,
as Co-Syndication Agents,
DEUTSCHE BANK SECURITIES INC. and
FORTIS CAPITAL CORP.,
as Co-Documentation Agents,
THIS SIXTH
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
“ Sixth Amendment ”), dated as of
September 17, 2009, 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
”), Wells Fargo Bank, National Association and BMO Capital
Markets Financing, Inc., as Co-Syndication Agents (the “
Co-Syndication Agents ”), Deutsche Bank Securities
Inc. and Fortis Capital Corp., 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 April 14, 2006, as amended by
that certain First Amendment to Amended and Restated Credit
Agreement, dated June 27, 2007, that certain Second Amendment
to Amended and Restated Credit Agreement, dated September 12,
2007, that certain Third Amendment to Amended and Restated Credit
Agreement dated September 30, 2008, that certain Fourth
Amendment to Amended and Restated Credit Agreement dated
May 12, 2009, and that certain Fifth Amendment to Amended and
Restated Credit Agreement dated July 28, 2009 (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 Credit Agreement to permit the merger of
an Affiliate of the Borrower with Hicks Acquisition Company and to
make the other modifications specified herein; and
WHEREAS,
subject to the satisfaction of the conditions set forth herein, the
Administrative Agent and the Majority Lenders are willing to amend
the Credit Agreement and to take 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 Sixth 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:
“ Hicks
Merger ” means the transactions described in that certain
Purchase and IPO Reorganization Agreement among Hicks SPAC,
Resolute Energy Corporation and others, dated August 2, 2009,
whereby (a) Hicks SPAC and the Loan Parties (as constituted
immediately prior to the Sixth Amendment Effective Date) other than
Resolute Holdings Sub, LLC become direct or indirect wholly-owned
Subsidiaries of Parent and (b) Parent becomes a publicly held
corporation.”
“ Hicks
SPAC ” means Hicks Acquisition Company I, Inc., a
Delaware corporation.
“ Sixth
Amendment ” means that certain Sixth Amendment to Amended
and Restated Credit Agreement, dated as of September 17, 2009,
among the Borrower, the Administrative Agent and the other Lenders
party thereto.”
“ Sixth
Amendment Effective Date ” means the first Business Day
on which all of the conditions precedent set forth in
Article III of the Sixth Amendment shall have been
satisfied.”
(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, further amended by the Second Amendment,
further amended by the Third Amendment, further amended by the
Fourth Amendment, further amended by the Fifth Amendment, and
further amended by the Sixth Amendment, as the same may from time
to time be amended, modified, supplemented or
restated.”
(c) The
definition of “ Change in Control ” in
Section 1.02 of the Credit Agreement is hereby amended by
deleting it in its entirety and inserting the following in lieu
thereof:
“ Change
in Control ” means (a) a majority of the board of
directors of Parent ceases to be composed of individuals
(i) who were members of such board on the Sixth Amendment
Effective Date, (ii) whose election or nomination to such
board was approved by individuals referred to in clause
(i) above constituting at the time of such election or
nomination at least a majority of such board, or (iii) whose
election or nomination to such board was approved by individuals
referred to in clause (i) or (ii) above constituting at
the time of such election or nomination at least a majority of such
board, (b) any “person” or “group” (as
such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, but excluding any employee benefit plan of
such person or its subsidiaries and any person or entity acting in
its capacity as trustee, agent or other fiduciary or administrator
of such plan) shall acquire beneficial ownership (within the
meaning of Rule 13d-3 and 13d-5 of the SEC under the
Securities
2
Exchange Act of
1934, as amended, and including holding proxies to vote for the
election of directors other than proxies held by Parent’s
management or their designees to be voted in favor of persons
nominated by Parent’s board of directors) of 35% or more of
the outstanding voting securities of Parent, measured by voting
power (including both common stock and any preferred stock or other
equity securities entitling the holders thereof to vote with the
holders of common stock in the elections for directors of Parent),
or (c) Parent shall cease to own, directly or indirectly, at
least 99.5% of the Equity Interests of Borrower.”
(d) The
definition of “ Parent ” in Section 1.02 of
the Credit Agreement is hereby amended by deleting it in its
entirety and inserting the following in lieu thereof:
“
Parent ” means Resolute Energy Corporation, a Delaware
corporation.”
Section 2.02
Amendment to Section 9.04 of the Credit Agreement .
Section 9.04 of the Credit Agreement is hereby amended by
deleting it in its entirety and inserting the following in lieu
thereof:
“Each Loan
Party will not, and will not permit any Subsidiary to, declare or
make, or agree to pay or make, directly or indirectly, any
Restricted Payment, return any capital to its stockholders or make
any distribution of its Property to its Equity Interest holders,
except (a) Loan Parties may make Restricted Payments to each
other, (b) Hicks SPAC and Parent may make payments in respect
of forward stock purchase agreements entered into by Hicks SPAC or
Parent in order to secure approval of the Hicks Merger, and
(c) Parent may make Restricted Payments not to exceed
$1,500,000 in the aggregate during any fiscal year or $2,500,000 in
the aggregate during the term of this Agreement (other than
(i) upon the occurrence and during the continuance of any
Event of Default with respect to matters specified in
Sections 10.01(a), (b), (f), (g), (h), (i), (j) or (k),
or (ii) when the Borrowing Base Utilization Percentage exceeds
ninety percent (90%)).”
Section 2.03
Amendment to Section 9.05(j) of the Credit Agreement .
Section 9.05(j) of the Credit Agreement is hereby amended by
deleting it in its entirety and inserting the following in lieu
thereof:
“(j) loans
and advances to directors, officers and employees of Parent or any
Restricted Subsidiary permitted by applicable law not to exceed
$250,000 in the aggregate at any time.”
Section 2.04
Amendment to Section 9.11 of the Credit Agreement .
Section 9.11 of the Credit Agreement is hereby amended
by:
(a) adding
“(a)” immediately prior to “any Restricted
Subsidiary” in the fourth line thereof; and
(b) deleting
the period at the end of the last line of Section 9.11 and
replacing it with “, and (b) the applicable Loan Parties
may consummate the Hicks Merger.”
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Section 2.05
Amendment to Section&n
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